







































































CONSTITUTION OF TENNESSEE 

Considered with Reference to the Constitu¬ 
tions of other States. 


Important Matters that would come before a 
Constitutioival Convention. 


By G; F. MILTON. 


Copyright, 1897, by The Author. 
Knoxville, Tennessee. 



















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CONSTITUTION OF TENNESSEH. 


I. 

TENNESSEE’S CONSTITUTIONS. 


The least explored field of original 
research is that of our state govern¬ 
ments. And yet the political history ex' 
the United States can not be clearly 
understood without an examination of 
the political development and evolution 
revealed by the annals of every Ameri¬ 
can commonwealth. Comparatively lit¬ 
tle attention has been given to 
the histories of the different states, 
•scarcely any at all to tJhe histories of 
institutional changes. The historians 
have contented themselves with Iliads 
about the heroes around whose brows 
posterity loves to entwine laurels of 
fame. Greater stress Is laid upon the 
pre-revolut'ionary period and often the 
far more important century succeeding 
is passed over in a cursory manner and 
ifne tale only half told. Many well 
known writers have called attention to 
this neglect of our state histories and 
politics. Dr. Jas. F. Jameson, writing 
ten years ago, stated that “the most ne¬ 
glected field in American history is the 
field of state history,—the constitu¬ 
tional and political history of the in¬ 
dividual states. * * Any bibliography 
will show that there is an astonishing 
barrenness even in the case of the old¬ 


er states.” (1) He emphasized the point 
that it is absolutely necessary to kn<ow 
these in order to be fully acquainted 
with fine current of national life. What 
he said then is as applicable now. James 
Bryce, the eminent English commen¬ 
tator on our polity, expressed astonish¬ 
ment that while the most bitter politic¬ 
al contests' in the history of finis coun¬ 
try were on the questions of Mate sov¬ 
ereignty the “character, power, 
and working of three generations of the 
states as separate self-governing bodies 
have received little or no attention or 
illustration,” “Yet they are full of in¬ 
terest,” he says, “and he who would un- 
dersitand the changes that have passed 
in the American democracy wi.l find far 
more instruction in a study of the state 
governments than of the federal con¬ 
stitution.” (2)It is a most unaccountable 
phenomenon that wliiile the American 
citizen in any one of the states comes 
^so little in contact with the federal gov¬ 
ernment and so closely deals with his 
state and local governments still his in¬ 
terest politically is, as a rule, more set¬ 
tled on the former than tine latter. Mor¬ 
alists commenting on our political life 
have found in this straaige fact one of 


(1) “Constitutional and Political His- (2) “American Commonwealth,” Vol. 
tory of the States,” p. 6. P* 412 




the causes of the decline of the efficien¬ 
cy of our local self-ruling institutions. 
The turning of attention to those things 
afar oft has given an opportunity to 
designing ma.nipulatoi’S to make wlhat 
they cJhose of these local governments, 
far which we shed our blood to main¬ 
tain, but which we neglect when we 
have secure. It is a sentiment of higlh- 
er patriotism which holds the federal 
union in greatest attachment to the clr- 
izea, although the state government 
co'ncerns foim most. “So the balance 
between the two is preserved,” says 
Bryce. Yet it was not considered treas¬ 
onable for Samuel Adams to say that 
he loved Massachusetts dearer than 
■the United States. A little 
more of that old time patriotism for 
state would not be amiss at the pres¬ 
ent. T'he tendency of late years 
has been sadly to the disinterest of our 
state governments. 

Demand for a Change. 

Tennessee,in August next will vote on 
a question which concerns the state 
government vitally. For the past five 
years there has been heard, faintly at 
first, but growing louder until the leg¬ 
islature was led to take action, a rum¬ 
bling of protest against our 
present organic law, that of 1870. The 
advocates O'f a convention argued that 
the present const tuf on, while the wcrk 
of very able men, had been intended 
only as an expedient, tempoi'ary in its 
nature; that the makers merely en¬ 
grafted upon the constitution cf 1834 the 
amendments made necessary by the re¬ 
sult of tfhe civil war and the changed 
social and political conditions brought 
about thereby, and that the most emi- 
ment members of the convention, which 
sat in the capitol while the federal sen¬ 
tries patrolled outside, had confidently 
stated tfhat within ten years the in- 
s rument framed would have to be 
amended. It was very forcibly present¬ 
ed that the present charter was infiex- 

Girr 

jrov. 23, 1939 


ible; that repeatedly aalutary measures 
passed by the legislature were rendered 
null because of its restrictions; that it 
took away the right of home rule as 
to various matters on which in a state 
of tfhe varying aspect, industrially and 
socially of Tennessee,there could not be 
an agreement and that it was oppres¬ 
sive to the urban communities and hO'S- 
tile to investors by its requhements as 
to taxation. These arguments were used 
.so effectually that the voters have been 
given the right to g:) to the polls and 
•signify tr.ie.r desires as to whether or 
not a convention shall be held. It be¬ 
comes well, then, for all Ten¬ 
nesseans in the intervening time to 
give close attention to the subject of 
the politics of the state and 
especially inquire in the hs- 
tory of its constitutions in 
o,rder that the expression at tihe polls 
in August shall be an intelligent one. 

The present constitution is the 
third under which tIhe people of 
the state have lived during its 
century of existence. The average 
duration of life of our constitu¬ 
tions, surmising that we hold a con- 
vent'on ard frame a new one this year, 
is 33 1-2 years. The average in other 
states of the union has been about 
twenty years. Tennessee, it is thus 
seen, has been intensely conservative. 
In the first 110 years succeeding Ameri¬ 
can independence the total number of 
distinct constitutions, eittrer newly 
adopted or completely revised, was 104. 
(3) In some states the legislature is re¬ 
quired at stated intervals to submit the 
question of holding a convention to the 
people, as in New Hampshire every 
seven years, in Iowa every ten years, 
in Michigan every sixteen y-ears in New 
Yoi'k, Ohio, Maryland, and Virginia 
every twenty years. There is, thus, 
nothing revolutionary in the demand 
for a convention. 


(3) According to Dr. Henry Hitch¬ 
cock. 



— 3 — 


Watauga and Cumberland. 

It may be well to mer./f.on also tfiiat 
previous to acceesion t3 statehood the 
inh'a'bitauts of the region now com¬ 
prised within the bounds of Tennessee 
had three charters fiamed by them¬ 
selves. The independent. self-reliant 
spirit of tine backwoodsmen on the 
Watauga was shown by their forming 
an association and drawing up articles 
in 1772. “This was the first concrete 
manifestation of the distinctively 
American spirit of independence,” 
(4) says Joshua W. Caldwell, 

in his “Constitutional History 
of Tennessee,” an admirable 
work that takes Tennessee out 

of the list of states which 

have absolutely no literature on the 
subject of their constitutions. Bancroft 
recognized the importance of the Wa- 
cauga settlement’s act when he said: 
“Its members * * * set to the people of 
America the example of erecting them¬ 
selves into a state, independent of the 
authority of the British king.” (5) The 
settlements about the French Salt Lick, 
now Nashville, on the Cumberland, 
among whom was James Robertson, 
one of the pioneers on the Watauga, 
also framed a constitution in 1780. Both 
of these instruments were simple char¬ 
ters, custom being embodied in¬ 
to law. When Sevier and his 
captains in 1785 had set up 
the state of Franklin they felt t‘he 
necessity o-f a constitution better suited 
to the diverse interests of a more popu- 
ous community. After a long dis¬ 
cussion, during which Rev. Samuel 
Houston presented a constitution for 
the “state of Frankland,” which was 
a very remarkable instrument and is 
still preserved, the simple yeo¬ 
manry decided that Jc.eir preference 
was for the institutions under which 
they had lived, those of North Caro- 
lira, and the constitution of that state. 


with ner’essary changes, was adopted 
for Franklin. 

Constitution of 1796. 

In 17f6 Tennessee, as expressed by the 
witty Henry M. Wiltse’, of Chattanoo¬ 
ga, “volunteered” into the union, co^n- 
gress having given no opportunity, and 
thus acquired her sobriquet. The terri¬ 
torial governor, Wm. Blount, had been 
a strong advocate of statehood and had 
urged the legislature to have a census 
taken, which was done and 
s'.jme 77,000 'persons found to be within 
the confines. The election held at the 
time to determine the desire of the 
citizens as to whether or not they en¬ 
ter the union showed about two-thirds 
so ciisposecJ; there was a very c in.s’id- 
e^gble opposition among these in the 
Cumberland, or Mero, district. A con¬ 
stitutional convention was called and 
assembled in Knoxville on January 11, 
1796. There were at that time eleven 
counties, Blount, Davidson, Greene, 
Hawkins, J-efCerson, Knox. Sullivan, 
iSevier, 'S'umner, Tennessee and Wash¬ 
ington. Five members .came from each 
county. The names of those members 
which are best known, according to 
Caldwell, are: Andrew Jackson, John 
McNairy, James Robertson, Thomas 
Hardeman, JoielLewis, Jolseph McMinn, 
William Cocke, Joseph Anderson, Arch¬ 
ibald iRoane, William Blount, James 
White, Charles McClung, W^. C. C. 
Claiborne, John Rhe'a, Landon Carter, 
John Tipton and David Shelby. It is 
rather remarkable that Sevier was not 
a member of the convention, although 
it is known that he was heartily in 
sympathy with the purpose for which 
it was called. The nomenclature of the 
counties is the best evidence of tire in¬ 
fluence of many of these men whose 
names are given. kRev. S>amuel Car- 
rick, th.e founder of Blount college, 
afterwards East Tennessee university 
and finally University of Tennessee, 
opened the convention with prayer. 


(4) p. 11. 

(5) Vol. 3, p. 403. 




— 4 — 


That economy was pn-acticed is shown 
by the fact that only $10 was expend¬ 
ed by the convention. None of them 
received a cent of milieage or per diem. 
The constitution was framed afirv a 
session of twenty-eight days, and was 
not submitted to the peo'ple. Ii was 
designated by Jefferson the “leaet 
imperfect and most republican” 

(6) of those adopted up to 
that time. There seem to be 
good grounds, however, for ques¬ 
tioning the wisdom of the .sage of 
Monticello’s verdict. 

Not a New Creation. 

The instrument under which Tennes¬ 
see was governed for thirty-eight 
years was not in any sense a new 
creation. ‘Tt was,” as expressed by 
Edward T. Sanford, Esq., in an ad¬ 
dress before the iS'tate kBan association, 
“the result of logical and gradual 
growTh, and, in fact, but the atJapta- 
tion and modificafion, to suit changed 
conditions, of constitufional principles 
with which the members of the con¬ 
vention had long been familiar. Nonrt'h 
Carolina had adoipted a new constitu¬ 
tion in 177'6, shortly after the Declara¬ 
tion of Independence, which breathed 
largely the spirit of individuai liberty 
and the rights of man.” (7) Its ground¬ 
work was that same charter which 
w’as granted to Clarendon in and 

the institutions were even more Eng¬ 
lish than were those of England of the 
18ih century. The influence of Vir¬ 
ginia, also, had been large, for much 
of the settlement of North Carolina 
had been done by Virginians. The 
main features of the constiitution of 
17'96 and the principal departures from 
that of North Carolina were as follows: 
The general assembly, as no w, was to 
consist of two distinct branches, both 
elected by the people. The executive 


(6) Ramsey, p. 657. 

(7) Proceedings Bar Association of 
Tennessee,, ’96, p. 109. 


officer, the governor, w^as also to be 
elected b'y the 'people, and not by the 
legisiatnre as in the old state. .Ncith 
Carolina’s judicial system w’as adopted 
and, as will be seen, with dire results.. 
The judges were to be elect 3d by the 
assembly and hold office during ‘good 
behavior.” A departure from the mod¬ 
el before it was made by the conven¬ 
tion as to taxation of land, and with 
unfortunate consequences. It was 
provided that no one hundred acres, 
of land should be taxed higher than 
another, except towm lots, and they 
should not be valued more than any 
two hundred acres of land each. This 
provision, it was charged, had htren 
inserted at the instigation of land, 
speculators. At any rate it wa.s un¬ 
fair find caused no end of troub’e. 
Practically, manhood suffrage was es- 
tanlished; in this respect '■.He longe'i 
step forward toward a government 
based upoii popular will being taken. 
The religious test of office provided by 
Noith Carolina was abolished. 

Centralizing Features. 

Another feaiure cf the first ccmsti- 
tution, and one that ultimately made it 
very unpopular, was the centralizing 
provisions by which all judges, suaie 
attorneys and justices of the peace 
were to be elected by the legislature. 
In turn, the justices composed the 
county courts which elected sheriffs, 
coircners, trustees and constables. 
These officers held indefinitely; it thus, 
soon resulted that a small coterie ob¬ 
tained control of the state’s machinery 
and its tyranny became unbearable^ 
The ca.mpaign of 1821 saw the culmina¬ 
tion of a reform movement when Wil¬ 
liam Carroll made the race against Ed¬ 
ward Ward. Carroll was the common, 
people’s candid'Ote and was overwhel- 
m-ingly elected. ‘‘This electio<n” says 
Phelan “anticiFated the constitutional 
convention of 1834.” (8) Carroll was un- 

(8)) History of Tennessee, p. 252. 



doubtedly the most virile figure in our 
ante helium history and but for the 
oivertowering omiinence of some of the 
other statesmen Tennessee produced 
during that period, would be better 
known to ftamo. He won the title of 
the “reform governor” during his 
eleven years’ Incumbency of that office 
aind saw enacted as many salutary 
laws as were possible under the con¬ 
stitution cif 1796. To attain adequate 
reform of the judicial system—for sev¬ 
eral of the most promiinent of the 
judges had already been impeached 
for their high-handed proceedings— 
and to equalize taxation and restore 
complete local self-government to the 
counties it was imperative that the 
constiiiution be chang'ed and this was 
the object of the convention of 1834. 

Convention of 1834. 

This convention assembled on the 19th 
of May and adjourned the 30th of Au¬ 
gust of the same year. Strange to 
say it did not attract many of the 
most prominent men of the state, as 
did the conventions of 1796 and 1870. 
A few nam-e-s lare preserved, among 
them being, Wm. B. Carter, the presi¬ 
dent, BO'bert J. McKinney, Francis B. 
Fogg, Robert Weakiey, Newton Can¬ 
non, West H. Humphreys and Willie 
Blount, thrice governor. And yet, as 
pointed out by Caldwell, “The consti¬ 
tution of 1834 is the only constitution 
that the people of Tennessee have ever 
made. It is the only one of the three 
constitutions that was the product of 
conditions existing in the state at the 
time when it was enacted.” (9) That of 
1796 was an adaptation of North Caro¬ 
lina’s constitution, while that of 1870 
was merely the amendment of the con¬ 
stitution of 1834, made necessary by 
the abolishment of slavery. The comven- 
tion took the dilemma as to the judi¬ 
ciary by the honns and remedied it 
by nruAking the three departments, 
legislative, executive and judicial, co¬ 


ordinate. It was provided as to taxa¬ 
tion that “all p'roperfcy shall be tax¬ 
ed according to its value; that the 
same shall be equal and uniform 
throughout the state.” This is prac¬ 
tically a similar provision to that which 
we have in the present oonstitution. 
The references to bank stock, mer¬ 
chants and pirivileges show the pro¬ 
gress of the state in an economic 
sense. It was no longer purely agri¬ 
cultural. although rroainly so. The po¬ 
pulation had reached about 700^,000. 
The tax provisions suited the condi¬ 
tions o*f that time. They removed 
the evils that had existed, but were, 
nevertheless, adapted to a rather 
primitive people. The supreme court 
was made a constitutional tribunal: 
the other courts were to be established 
by the legislature. In 1853 an amend¬ 
ment was adopted making the judges 
ei-ective by the people. The counties of 
the state were to ’be laid out into dis¬ 
tricts from^ which justices were elect¬ 
ed. The county court system, bor¬ 
rowed from England was retained, 
but it was made more democratic. 
Dueling was aimed at in one clause 
and lotteries in another. The power 
to grant divorces was taken 
from the legislature and vested in 
the courts. Stringent provisions were 
inserted against special laws. Inter¬ 
nal improvements were favored, 
a disastrous approval as it hap¬ 
pened, Commissioners of the 
school funds were to be ap¬ 
pointed. In many other respects 
tne constitution was made more dem¬ 
ocratic. The convention’s work reflect¬ 
ed the greatest credit upon its mem¬ 
bers and the people promptly 
ratified the constitution. Our or¬ 
ganic law is in all essential re¬ 
spects that of sixty-three years ago. 
As will be seen, the convention of 1870 
devoted itself almost entirely to the 
provisions as to suffrage. 


<9) Constitutional History, p. 143. 



Framing of Present Constitution. 

Tennes&se was* one of the 
few states of the south wlilch 
did not have an entirely new 
tconstltution ifr<amed!i during* the recon¬ 
struction period. Amendments had 
been adopted in 1866 so >as ^o conform 
to the federal constitution on the sub¬ 
ject of slavery, but otherwise the le- 
•pubiieans had not sought to clrange 
the instrument. When they divided 
among themselves in 18i69 the demo¬ 
crats seized the opportunity of uniting 
with one of the factions. Being tri¬ 
umphant a convention was called. The 
primary object of this assemblage was 
to restore the right to vote to iho'se 
from whom it had been taken and also 
so to deal with the suffrage question 
that the masterful race might not be 
subjected to negro dyomination. :rome 
of the most eminent men Tennessee 
has produced came together to do this 
momentous work. On them devolved 
the duty of restoring social order, of 
preserving the grand old common¬ 
wealth from a restoration of power to 
the 'regime which had just tyrannized 
over it. John C. Brown was presidient 
of the convention. Among the other 
distinguished members were: Neill .S'. 
Brown, James D. Porter, John Nether- 
land, John Baxter, George W. Jones, 
William H. iSfephens, Joseph B. -Heis- 
kel'l, John F. House, Judge D. M. iKey, 
ex-Senator A. O. P. Nicholson, Vv^. H. 
W'illiamson, George E. 'S'eay, J. J. Tur¬ 
ner. H. IR. Gibson, W. B. Staley, John 
W. Burton. A. Blizzardi, G. G. Dibbr'ell, 
Sparrel Hill, Alex. W. 'Campbell, James 


Fentress, Thomas M. Jones and John 
A. Gardner. Senator Nicholson was 
made chairman of the important suf¬ 
frage committee, and the best effort 
of the convention was devoted to this 
rc.O'ttei. Conservatism was counseled 
and the fie'ry spirited repressed. The 
result was the re-enaotment of the 
piovisions of the old constitucion in 
this regard, with the addition of ilie 
poll tax qualification, which was left 
to the legisl'ature to enact. The suf¬ 
frage was, of course, conferred without 
regard to color. The O'ther work of the 
contention was supplementary. The 
state was prohibited lending aid to cor¬ 
porations, and counties and cities if'- 
stricted in that respect. The gove: nor’s 
veto power was practically cut off and 
his hands tied as to the militia, these 
provisions growung out of the experi¬ 
ences wi.h governors during the recem- 
struction period. No recognition of the 
vastly changed industrial condition of 
the commonwealth since 1834 was ta¬ 
ken. Questions of such importance to 
us now as the government of citi■n^'' 
the development of mining and manu¬ 
facturing industries were ignored. The 
expanding economic importance of 
Tennessee did not seem to impress the 
convention. The veil had not yet been 
lifted. Had the members assembled 
five years later the conscitution mrrht 
have lasted the century out. It was 
constantly said in the convention! 
tbeat “all' this mus>t be done again.” 
(10) But the state has retained 
the same organic law" until it has be¬ 
gun to bind its industries seriously. 


(10) Caldwell, p. 150., 



ir. 


EVOLUTION OF 

The most cursory exarruinatioin of the 
constitutions which the states of the 
Union have at different times had must 
lead to oine startling’ conclusion: that 
the capacity of statimg broad, general 
principles in a few words, which the 
fathers posseseed to such a remarka¬ 
ble degree, was mot handed down to us 
by them. Whereas, the constitution 
of the United States created our judi¬ 
cial system .in thirty words and by 
eight words established aur admiralty 
and maritime juTisdiction nor ever des¬ 
cended to details except in the instance 
of the ei.ecto.ral system-, which was one 
of the first clauses that it was neces¬ 
sary to amend our more recent con- 
stitutions proceeded to the opposite ex¬ 
treme and no detail of petty manage¬ 
ment escapes the attention of the mak¬ 
ers. The tendeincy is exhibited in the 
contrast between the constitutiom of 
New Hara-pshire of 1776, which contain¬ 
ed only 600 words and those of Mis¬ 
souri of 1875 and North Dakota of 1889, 
each of which requires something like 
thirio’’ thousand wo;rds to express the 
provisions which the fra*mers thought 
necessary. The contrast, in this re¬ 
gard, between -the first and last of Ten¬ 
nessee’s constitutions is not nearly so 
marked, but our cnvn state has, with 
all the others, experienced the ten¬ 
dency of the law makers to amplify the 
charter until it consists rather of sta¬ 
tutes than of the concise statements of 
what should constitute the framework 


ORGANIC LAWS. 

Of a government, the details of which 
are ta be filled in by the representa¬ 
tives of the people—those called from 
time to time to make and repeal Laws, 
as the conditions of the state demand. 
Our federal constitution, stating the 
comprehensive general principles on 
which the government was established, 
has been sufficiently elastic to allow 
expansion by proper construction. It 
has stood the test of one hundred years 
and is still the palladium of our 
liberties. Beside the ten articles of 
amendment, known as the “bill of 
rights”—the formal assertion by the 
people of those privileges of inestima¬ 
ble value, which their English fotre- 
fathers had wrung from King John 
in the “Magna Charta,” and those at¬ 
tained in the bloodless revolution of 
1688—there h-ave been added omly five 
amendiments. Of these one affects the 
judiciary, one the electoral system, and 
three are the result of the civil war 
and provide for the extension of the 
suffrage. The development of the coin¬ 
stitution to suit the growth of a peo¬ 
ple from five million to seventy million 
in number and from a comp'Ssct of 
states to a nation has noit been through 
the addition of clauses, the tea.ring 
down and building up oif the instru¬ 
ment. but one of .interpretation. This 
evolution was going on in spite of the 
strenuous efforts of the strict construc¬ 
tionists. The most eminent oif the 
presidents of the party which held to 


— 8 — 


tJie theory that the government should 
have limited powers promoted the 
movement when occasion arose for it. 
On the either hand the experieince with 
our state constitutions has been of a 
contnarj^ chsanacter. Successive con¬ 
ventions hove virtually taken the form 
of more than ordmarily intelligent 
legislatures and these have sought to 
perpetuate upon the oorrumunity 'the 
poflitical “.isms” w'ith which they were 
im'bued. The courts have interpreted 
these instruments so formed rigidly, 
and hardly one of the states but has 
been hindered by orgainie laws that op¬ 
posed inflexibly 'any change from ma¬ 
terial .and economic conditions which 
existed at the time of their adoption. 
Tennessee has not suffered alone in 
this respect. The consequence Is that 
our hard and fast organic Laws, con¬ 
strued by a judiciary, as a rule, in¬ 
tensely conservative, soon come to 
press with such bad influence on the 
interests of the state that they must 
be frequently amended or new con¬ 
stitutions made. It is not remarkable, 
however, that soime of the constitutions 
of the older states, those closest 
approaching the (scheme of the fed¬ 
eral constitution, should have lasted 
longest and have proven most benefi¬ 
cent in operation. 

Classes of State Constitutions. 

The existing state constitutions may 
be separated broadly into two classes. 
In the states where the New England, 
New York or Pennsylvania influence 
prevailed we 'have one. Where the Vir- 
g'n a or southern st'.a'n was dominant 
another kind of organic law has been 
adopted. These, of course, varied in 
detail as different states of the south 
or of New England do in many particu¬ 
lars, but speaking broadly this classifi¬ 
cation may be made. And the forms 
of government which preva led in New 


England and Virginia were based on» 
the original charters granted these col¬ 
onies by the British sovereigns. While 
many lines of demarcation can be 
traced, that which is strongest and 
best identifies the society in each of the 
commun.ifes was the township of New 
England and the county of the south. 
When the emigrants from these two 
regions met in the northwest territory 
there was a sharp struggle as to what 
should be the form of local govern¬ 
ment. A comprom se was sometimes ef¬ 
fected; so we find Illinois, and several 
other states giving the counties local 
option as to the .township system. The 
Virginia influence seems to have been 
'predominant in Missouri, in the earlier 
days of Kansas and to have reached 
Oregon, California and Montana. 
The county, however, within the past 
thirty years has everywhere been giv¬ 
ing way to the Teutonic basis of polit¬ 
ical division, the tum, which offer a 
Lapse of several centuries in Great Brit¬ 
ain had emerged in New England, Jef¬ 
ferson., himself, found in this form of 
government mest to admire, and Vir¬ 
ginia within the past quarter of a cen¬ 
tury has engrafted it on hei’ polity, Qs 
has also North Carolina. In the west, 
too,it has prevailed. The larger division 
of the county seemed to be especially 
adapted to a purely agricultural society, 
but as a form of government for a 
community of more diversified interests 
it is open to many objections. Frequent 
complaint is heard where the county 
court government is depended upon for 
counties largely urban. Here the unfair 
representation leaves the city at the 
mercy of the country squires. James 
Bryce says very correctly of the present 
day trend of sentiment from counties to 
townsh ps that it ‘ grows with the 
growth of population, with the progress 
of manufactures and of the middle and 


9 — 


lndust:ious working class occupied 
therein, and especially with the in¬ 
creased desire for education.” (11.) 

Features of Early Constitutions. 

The constitutions of t'he thirteen 
original states formed prior to or dur¬ 
ing the revolut'onary war gave large 
power to the legislatures and limited 
that conferred upon the executives. The 
most marked feature in the develop¬ 
ment of these instruments and those of 
the states since added has been the 
incr.asing distrust of the legislative 
function. This has found expression in 
various safeguards and in the retention 
of power in. the people. In but few in¬ 
stances has it been sought to remedy 
the evil of tad legislatures by furnish¬ 
ing the governor with greater preroga¬ 
tives. although he now possesses a lim¬ 
ited veto in all but four states. The 
popular suspicloi of this official seems 
to have lasted with the growing disfa¬ 
vor of the bgslator. His choice has 
been taken aw, y fron the legis'ature in 
m'st states and res.s w'lth the people. 
In fact the democratization of the con¬ 
stitutions has shown itself in no other 
nianner more sir.king.y than in the in¬ 
crease of t'he number of elective offi¬ 
cers. Both the chief executives, and 
officers of a judicial character are now 
in most of ibe s.ates eleCced by the peo¬ 
ple at the polls. Life tenure of judge- 
ships has beei., ^'ell nigh wiped out,while 
many administrative officers have come 
also to be c'hosen at general elections. 
The const-tution of the state of New 
York, adopted in li9i, made the offices 
of Secretary of state, comptroller, 
treasurer, attorney-general and state 
engineer elective. This direct inter¬ 
ference o<f the people has narrowed the 
competence of the legislature; the 


(11) “Am. Com.” I, p. 599. 


states have thouglht it best to have 
constitutions burdened with cum'ber- 
s’ome detail and leave little or nothing 
to the intelligence of Iheir legislators. 
It has been strange that with 
their hands so tied, botlh the law¬ 
makers and the executives should have 
deteriorated in personnel. The legisla¬ 
ture has been limited in the period of 
its sessions in most of the states and 
in all but four now meets only once in 
two years. It cannot be said that 
much attention is paid to Ohe election 
of members nor is such election con¬ 
sidered the honor which it should be. 
The gover»no'r is restive under his re¬ 
strictions. Often he devotes his time 
to fostering a senator«ial boom. Prof. 
F. N. Thorpe, writing of the four most 
recent constitutions in the United 
'States, those of North and iSouth Da¬ 
kota, Montana and Washington, adopt¬ 
ed in 1889, says: “The perusal of th-est 
new constitutions suggests that the 
people have lost confidence in their 
state legislatures, and that the con¬ 
ventions, responsive to this feeling, 
have sought to anticipate great evils 
by limiting the pow’ers of the legisla¬ 
ture, or- by substantially limiting them 
in declaring by what procedure the 
legislature shall act, and to what ex¬ 
tent it may act. The dhief limitations 
on the legislature are with respect to 
special or private legislation, corpora¬ 
tions, po.itical corruption among mem¬ 
bers, taxation and power- to use credit 
of the state.” (12.) 

Our own Tennessee constitution, 
unfortunately, also dabbled in 
some of these matters. The clauses 
seemed harmless enough until con¬ 
strued by the courts. In fact, many of 
the most obnoxious features of the law 

(12.) “Recent Cons.-Making U. S.,” 
p. 17. 



— 10 — 


of tlhis state are sueh throug-h inter¬ 
pretation. For instance the narrow 
construction as lo “trial by jury/’ 
“equal andi uniform taxation,” “class 
legislation,” made ‘by our courts are of 
article® in our constitution almost 
identical with those in many of the 
other states, which have never givex 
any trouble. The duty of a conven¬ 
tion to revise the constitution would 
be to define specifically what “equal 
and uniform taxation,” “trial by jury,” 
etc., are. These decisions, some of 
which are used as precedents, come 
dowm from half a century ago. 

Struggle for Enfranchisement. 
fl3e.side the growth of administrative 
detail, the reservation of power by the 
people themselves and the consequent 
shearing of authority of the legisla¬ 
tive, the most radical development of 
cur basic iaw's has been in the mat¬ 
ter of suffrage. Probably the atten¬ 
tion of the 110 constitutional convenv 
tions since the establishment of the 
government has been devoted more 
to this subject than any 
other. In this the people have al¬ 
ways been interested. The majority of 
them pay little attention to a matter 
like that of taxation, for instance. The 
frightful struggle involving the sec¬ 
tions, the result of which w^as the de¬ 
nial of the right of seices'sion and the 
bestowml of manhood suffrage, 
regardless of color or previous 
condition, is of course familiar. It is 
not so well kno'wn tihat the extension 
of the right to participate in the gov¬ 
ernment by casting ballots wia® re¬ 
fused in many states for over half a 
century to large num'bers of the w'hite 


(13.) “Century’s Struggle for Fran¬ 
chise in Am.,” Harper’s Mag. Jan. ’97, 


maLes of over twenty-one years of age. 
Although the author* of the Declaratioii 
of Independence, wihich declared that 
“all men were created free and equal,” 
was a Virginian, that state retained 
a property qualification disfranchising 
80,000 of its male inha'bitants over 
twenty-one year® of age as late as 
1850. In 1830 a convention met in 
which Madison, Monroe, Marshall and 
Randolph were conspicuous figures. 
The advocates of univensal white man¬ 
hood suffrage from the w^est of tihe 
mountains were unable to carry their 
point; the above mentioned statesmen, 
one of them the father of the federal 
constitution, being among those who 
held that representation should ‘be 
based upon property. (13) One of Web¬ 
ster’s most famous speeches, his Ply¬ 
mouth oration in 18'20', was delivered 
in support of the same theory. (14) He 
returned to Masachusetts sixteen years 
later to see the' legislature which had 
cincsen him senator vote an amend- 
m.ent conferring the franchise,he had 
opposed. James Kent, Rufus King and 
Martin Van Buren fought a like con¬ 
cession in New York in 1837. (15) 

But the tide was running 
swtftly in that direction. The election 
of a Tern ssean, a representative of the 
broad w'est, had had much to do with 
the instilling of a more perfect demo¬ 
cratic spirit in the states. The move¬ 
ment could not be withstood. Little 
Rhode Island alone persisted in a prop¬ 
erty qualification after the civil wa!, 
"etain ng it until a few years ago. Mas¬ 
sachusetts, South Carolina and Mis¬ 
sissippi, the two latter recently adopt¬ 
ed, leave quasi-educational require¬ 
ments. Now w'e 'have V’^yoming, Colo- 

(14) Do. 

(15) Do. 



—11 — 


rado and Utah with woman suffrage, 
while in twenty other states women, 
have the right to vo e at school elec¬ 
tions, and in Kansas and Michigan this 
privilege is extended in municipal elec¬ 
tions. (16) The woman suffrage move¬ 
ment seems on a stand, however. It is 
reported as the experience of the states 
Where it has heen tried that the ex¬ 
tension of the franchise to females has 
very little effect on politics; that few 
of them vote 'and their influence as a 
factor is not felt. 

Tennessee’s Democratic Tendency. 

In the matter of suffrage Tennessee 
TVTas one of the first of the states to de¬ 
part from the p ecept of its eastern 
neighboirs. In the constitution of 1876 
the franchise was extended to all male 
adults who were citizens of the United 
States and had resided n the state and 
county in which they then resided six 
months. The inhatitar.ts were as a 
rule poor and any property qualification 
would have disfranchised four-fifths of 
them. It is said that of one of t'hs 
Virginia companies in the war of 1812, 


consisting of 70 men, but two 
could vote. Tennesseans had built 
their habitatio.ns in the wilderness; 
they had shown themselves capable of 
self-protection from savage and from 
the British;'and they proved themselves 
capable of self-government, without 
disfranchis ng any except criminals and 
dependents. This was undoubtedly the 
feature of our constitutio-n which 
prompted Jefferson tr call it the most 
republican. Strange to say, in 
srite of the liberality with the fran¬ 
chise, we have retained a religious qual¬ 
ification for office. But it is not en¬ 
forced. Although the bill otf rights pro¬ 
vides against any such te^t, the consti¬ 
tution declares that I’oelief in a supreme 
biing and future state of rewards and 
punishment shall be necessary in order 
to hold office. It is also passing strange 
that the state foremost in doing away 
with property qualification for voting 
should have relmposed a practically 
similar qualification in the payment of 
a poll tax. Our stiite is o^ne of the last 
to retain this requirement. 


(16) Bryce “Am. Com.,” I, p. 554. 



nr. 


OUR STATE IN 1834 AND 1897. 


While in all essentials except as to 
the suffrage the constitution of this 
staOe retmains that of 1834—63 years 
old—and has been subject to a most 
rigidly strict interpretation, it must 
not be inferred that the comm on wealth 
is a community si-milar socially, indus¬ 
trially and politicailly to that of the 
timie when the arganic law W’as fra*m- 
ed. A vast chanige has been wrought 
in Tennessee and it is in readiness to 
continue the development when it can 
do so unhampered by restrictions im¬ 
posed by its constitution. The popula¬ 
tion of the state in 1830 was 681,904. It 
ranked ninth among the states in in¬ 
habitants. In 1860 the population had 
grown to 1,109,801 and the rank was 
then fifth. The population in 1890 was 
1,767,518; in rank it had descended to 
thirteenth. The state was purely agri¬ 
cultural in 1830. Iin that year there 
were no cities which w^e should now 
consider of any consequence. David¬ 
son county had only 28,000 people, while 
Knox did not quite reach 15,000. Ham- 
iltoin and Shel'by were in the emlbryo. 
Nashvi'llie, Knoxville and Murfreesboro 
were the most considerable towns and 
the population of the former was 
hardly 6,000. Manufacturing enter¬ 
prise was in as incipient a stage as 
were the cities and w’hen the conven¬ 
tion of 1834 assembly It had to do with 


a people given over almost entirely 
to the cultivation o.f the soil. The in¬ 
strument framed wiis eminently suited 
to the time and the conditions. That 
the next constitutional convention, that 
of 1870, did not take cognizance of the 
already altered state and the future- 
progress along certain lines, which it 
did) not require a prophet to foresee,, 
can only be explained by the fa.ct that 
the suffrage question so absorbed the 
attention of members of the canvention. 
that they left for a future boidy, in 
their opinion soon to be called, the con¬ 
sideration of these w’'eighty matters. 
The subject of taxation had been much, 
discussed in the convention of 1834. 
The proivisions in that regard in the 
constitution of 1796 had proven very 
unjust in operation. iNo one hundred 
acres of land could be taxed higher 
than any other one hundred acres, ex¬ 
cept that towm lots shoiuld not be tax¬ 
ed higher than two hundred acres of 
land This was an “entail law in dis¬ 
guise,” says Phelan. (17.) Much of the 
agitation leading up to the revision of 
the constitution had been due to the in¬ 
equality of taxation. The conventiosn. 
of 1834 solved the difficulty in a man¬ 
ner suitable to the conditions superim¬ 
posed by enacting that “all property 
shall be taxed according to its value 
that value to be ascertained in such 


(17) “Hist. Tenn.,” p. 253. 




— 13 


iTiamner as the leg'isLature shall direct, 
so that the same shall be equal and 
uniform thrciug’hout the state.” The 
legisilature was also given the 
right to tax “merchants, peddlers 
and privileges.” The present con¬ 
stitution contains these identical 
provisions, but grants exemiptions on 
certain school, church, state, coointy 
and municipal property, and $1,000 
woirth of personal property In the 
hands of each tax-payer. The conven¬ 
tion of 1870 gave recognition to the 
growth of intangible property by let¬ 
ting it go free oif all taxation. 

Industrial Development of State. 

The economic development of this 
section has taken place In grea-t meas¬ 
ure since 1870. New forces have been 
at work and a new south produced. 
Tennessee, it was earl^^ seen, was,fixed 
upon as one of the states to receive 
this impetus and it hsss to a great de¬ 
gree. In mining, manufacturing and 
ccmmerce great strides have been 
made. The value of the product of 
our industries within the decade be¬ 
tween the censuses of 1880 and 1890 
leaped from thirty-seven to seventy- 
two million dollars. The mineral pro¬ 
ducts aione were valued at six and one- 
half mililion dollars in the latter year. 
Ncit one-fifth that amount had been 
produced annually ten years before. 
When we take into consideration the 
fact that the corn, wheat and cotton 
grown in the state had increased 
scarcely at all It is appreciated of what 
significance was this industrial pro¬ 
gress. Alabama, Georgia and Kentucky 
had shared with us this forward move¬ 
ment, and in fact their rates of increase 
in value of manufactured product were 
even greater than Tennessee’s, Ala¬ 


bama having reached in value of in¬ 
dustrial output from 13 to 51 million 
do’.larvs. Georgia from 36 to 78 million 
dollars, and Kentucky from 75 to 126 
million dollars. (18.) The value of Ala¬ 
bama’s mineral product had become 
annually ten million dollars. A com¬ 
parison of the 'increase of 
population of the eight states 
bordering on Tennessee with that 
of this state in the 'two decades between 
1870 and ISOO also discloses the fact 
that our rate of increase, which from 
1870 to 1880 w’as 22.55 per cent, and be¬ 
tween 1880 and 1890 14.6 per cent., was 
less in every instance, wdth the ex¬ 
ceptions of Virginia, and Kentucky in 
the latter decade, than those of the 
other states. The absolute increase is 
less than that of any of the states ex¬ 
cept Mississippi and Virginia. Within 
the past twenty years we 
have gained, in round num¬ 
bers, 508,000 inhabitants, Kentucky, 
536,000; Alabama, 515,000; Mississippi, 
461,000; North Carolina, 546,000; Arkan¬ 
sas, 633,000; Missouri, 957,000; Georgia, 
653,000, and Virginia, 430,817. The newer 
states, it is seen, have left us halting 
by the wayside in the matter of popula¬ 
tion. It can also be shoiwn that in the 
assessments of property for taxation 
our neighbors have made greater gains, 
Kentucky making an absolute increase 
in t n years of 177 millions of dollars, 
to Tennessee’s 154 millions, Geor¬ 
gia leading us by ten millions irn- 
crease, while Alabama doubled her as¬ 
sessments. As the division of persons 
among the employments does not differ 
very widely in the four states 
mentioned, these comparisons are not 
out of place. Tennessee had, in 1890, 
337,000 engaged in agricultural pursuits, 
19,000 in professional, 85,000 in service, 

(18.) Figures given compiled from 
census 1890. 



54,000 in commer-ce and 58,000 in manu- 
facto.ies. G-eorgia had a shghtly larger 
propoition in agriculture and service; 
Alatama emaller professional and 
service and Kentucky a much 

greater number in manufactur- 
ing pursuits. These common¬ 
wealths have each one received a 

large proportion of the influx of capital 
and people ,and this has dome much to 
transform and make them like new 
states. 

What Has Held It Back. 

Why Tennessee has not as¬ 

sumed a lead in both population anci 
material progress to which its resources 
seemed to entitle it and which it did as¬ 
sume up to 1860 may seem lacking an 
answer. A fact may be cited and ta¬ 
ken for what it signifies. The influence 
of laws is over-estimated, but in the 
case of the constitution of this state it 
must be conceded that it has exerted 
a retarding influence. Only two of the 
eight states on which Tennessee bord¬ 
ers have not made a greater absolute 
gain in population s nce 1870 and only 
one has not made a greater rela¬ 
tive gain. That one. Virginia, alone of 
the eister states has not had a new con¬ 
stitution since ours was adopted. The 
Old Dominion’s organic law was fram¬ 
ed likewise in 1870, Arkansas’ in 1874, 
Alabama’s and Missouri’s in 1875; North 
Carolina’s in 1876; Georgia’s in 1877; 
Mississippi’s in 1890 and Kentucky’s in 
1891. Some of these States, which have 
already enacted new charters since 
ours was ratified are considEring anoth¬ 
er change to bring them up to the 
standard required by the new condi¬ 
tions. It is not sought to show that this 
has been the only cause of Tennessee’© 
backwardness, but it may be stated 
without fear of contradiction that a 
hard and fast constitution, ca©t in the 
mold of a community of sixty-three 


years ago does not conduce to the pro¬ 
gress of a state in the closing year© of 
the nineteenth century. Narrow mind¬ 
ed legislation by partisan general as¬ 
semblies has furnished a further 
element with which the material inter¬ 
ests of the state have had to contend. 

Much of the cons:rva.ism, which af¬ 
fects the state as a whole, undoubtedly 
is due to the fact that in many counties 
a crystallization of soci> 2 ty has been 
reached and there is little change from 
year to year, or even from decade to 
decade. The industrial development 
which other counties have experienced 
1 © not felt there. AHhougli the ninety- 
six counties taken in the aggregate 
showed an increase of population of 
nearlj^ 15 per cent, in the ten years be¬ 
tween 1880 and 1890, the total increase 
being 225,000, there were twenty-two 
counties' in which there was not only 
no actual increase of population, but 
in fact, a decrease. There were as 
many more in which the population 
increased only very slightly. There 
are eight counties which contain either 
less inhabitants now than they did in 
1830 or but a small number more. The 
constitution of 1834, no doubt, '.s well 
suited to the needs of these counties 
which have never emerged from the 
ante-bellum conditions. They should 
not, however, stand in the way oif the 
advancement of the other counties. 

Growth of Cities. 

The substantial growth of the state 
since the war has been almost solely 
in uflban communities; the wealth of 
the state has been increased, its pros¬ 
perity enhanced by the products of the 
mill and mine. Its cities are its 
strength. Of the 225,000 increase in Ten¬ 
nessee’s population 117,000’ was in towns- 
of over 2,500 population. The numbei* 
of these had increased from eight o 


15 — 


fourteen; t'heir population from 120,30& 
to 237,530. The four largest counties, 
Davidson, 'Shelby, Knox and Hamil¬ 
ton, growing up about the populous 
centers, Nashville, Memphis, Knoxville 
and 'Chaittanooga, had increased^ in 
•population from 220,000 to 334,000. The> 
■contained nearly one-fifth of the peo¬ 
ple of the state. They paid almost 
one-half the taxes. Twenty-one coun¬ 
ties which 'have been marked by the 
growth of mining and manufacturing 
plants and Oif cities, j resented the stale 
a gain in population of 158,000 in the de¬ 
cade. Not a county where a coal, iron 
or copper mine or marble quarry has 
been opened or w’here any activity in 
manufacturing has been displayed 
but has grown 'healthily in 
population anci has paid into tihe state 
treasury a greatly increased proportioii 
of the revenue. Of these twenty-one 
counties, I am proud to say two-thirds 
are in East Tennessee. They have noa 
been afflicted with the dry rot; they 
have not sunken induistrially into a 
sleep like that of Rip Van Winkle, 
they are nol allowing 'Georgia, 
Alabama and Kentucky to capture the 
immigration and capital to which they 
think they have a just claim. They are 
earnest and are doing more to advance 
Tennessee than all the other eeventy- 


five. Yet that unfortunate opposition to 
law^s which recognize a changed condi- 
tiom is materially interfering with their 
efforts to 'attain something oatten. 
These twenty-one countiei' pay into the 
state treasury annually', according to 
the statement of the compiroller, about 
$750,000. The four purely urban coun¬ 
ties mentioned ^above pay in $622,000. 
The total receipts of the state for 1894 
from counties were $1,336,000. (19.) 

The industrial and urban com¬ 
munities contribute 56 per cent, 
of this. Of the privilege taxes, David¬ 
son, Shelby, Knox and Hamilton 
counties bear 62 per cent. The 
late legislature increased these 
licenses. Members from the counties 
which have not grown any since 1830 
voted for it. 

The injustice which has arisen under 
our ppcsent constitution i© this. It 
was made in 1834 when the state had 
no cities and scarcely any manufacto¬ 
ries. The legislatures have looked on 
these as legitimate prey' and have 
•burdened them -with the state’s grow¬ 
ing expenses. The states about 
us have adopted new con¬ 
stitutions tc meet new conditions. W’'e 
retain one suited to the early days of 
the republic and made more harsh by 
strict construction. It is a stone which 
must be rolled away. 


19.) Report of comptroller, 
65. 


’94, p. 



SYSTEMS OF TAXATION. 


Tennessee does not differ materially 
frt>m the other statesi of t!he American 
union as to tJha plan toy which it raises 
its revenue for the expenses of the gov¬ 
ernment. The general property tax is 
resorted to. That is, all 'property is 
taxed at a uniform late. The provis¬ 
ion of the constitution that taxation 
shall be etjual and uniform, looked at 
casually, does not seem to be offensive 
or likely to work injustices. In this 
particular, as with many of the other 
evils of our state government arisiing 
out of the constitution, the difflcult> 
has been not so much .with regard 
to the organic law itself as the inter¬ 
pretation which ‘has been put upon ii. 
Now, as a matter of fact, our supreme 
court in determining what is meant by 
equal and just taxation is influenced 
largely’ by what its predecessors, 
courts of the state eoime sixty’ years 
ago, held to be equal and just taxation 
when the matter of determining same 
first came up under the ' constitution 
of 1834. These opinions are handed 
down, and so conservative are our 
judges that what was just taxation 
for the purely agricultural community 
of 1834 is considered likewise an 
equitable revenue raising system for 
the d>iver&ied society of 1897. Thus it 
is that under an organic law providing 
apparently for a system of taxation 
which shall bear upon each tax-pay’er 


according to his ability, we have a 
system whidh permits double taxation 
of corporations; w’hich unfairly’ dis¬ 
tributes the burden among counties; 
which exempts a very large amount of 
property equally as able to bear its 
burden as that on which taxes are 
paid; which collects from merdhants 
and divers occupations arbitrary sums 
not at all in proportion to the capitax 
ini’ested or the ability of the payer, 
and which in many other respects vio¬ 
lates every canon of a just system of 
taxation. Fortunately, this state is 
not alone in suffering from unscientific 
treatment of the tax problem, thougfi 
in many respects our so-called sy^steni 
shows greater enormities than that of 
other states. 

General Property Tax. 

The general property’ tax, as has 
been stated, is common to all the 
states. This is the characteristic sys¬ 
tem of taxation in America. During 
the period of national develo'pment pre¬ 
vious to the civil war the inequalities 
of the system did not make them-- 
selves felt. The 'bulk of the wealth was 
then in land and the tax-gatherers 
had mo trouble in reaching it and col¬ 
lecting the revenue. Corporate wealth 
and intangible stocks and bonds had 
not come to be objects at which the 
fiscal officers of the com-monwealth 





— 17 


m*ust look for part of I'he revenue 
they needed for the support of the 
state. Now these classes of property 
(are equal, if not greater, in vyealth 
than realty im many of the states and 
in our own should certainly contriT^ute 
more to the support of the governiment 
than the very small proportion the>; in 
‘fact do. Many indictments have beev 
drawn against the general prop¬ 
erty tax 'by writers on finance, notably 
Prof. IE. IR. A. ■Selig'man, Dr. R. T. E'.y, 
David A. Wells, T. G. Shearman and 
others. The former sums up under the 
following heads the most conspicuous 
defects of the system: Lack of Uni¬ 
formity, Lack of Universality—that is 
failure to reach personal property—In¬ 
centive to Dishonesty; Regressivity— 
that is, the larger the intro me the 
smaller the proportionate taxation, •:nd 
Double Taxation. “Practically,” he 
says, “the general property tax as ac¬ 
tually administered today is beyond all 
penadventure^ the wevst lax known in 
the civilized world.” (20). And when it 
is added that Tennessee has the worst 
form of this “xvorst tax” it is seen 
how necessary is some reform in our 
tax sy^stem. 

Work of Tax Commissions. 

The M'ide-spread diseatisifactdon as 
to t'ne general property tax has led 
many states to establish tax commis¬ 
sions to make inquiry into the tax 
Ilaws of various governing communities 
and devise a better system. Pennsyl¬ 
vania, Ohio, New York, Connecticut, 
Wisc-onsin, Massachusetts, West Vir¬ 
ginia and Maryland are among these. 
Pennsylvania, of all the states, is 
thought to have arrived at the best 
results through this method, w*hile 
Wisconsi.n is another notable example 


of advanced methods. Both these 
commonwealths derive large amount? 
from the taxation of the natural mo- 

. -.f 

nepolies—that is, the railroad, tele¬ 
graph, telephone, gas and water com¬ 
panies'. The state board of equalization 
established in Tennessee two years ago 
had among its duties a report on the 
system of taxation in the other states 
with recommendations for Tennessee. 
But the board in this, as,well^as other 
matters, has been sadly derelict in its 
dutiee. 

Sovereign Right to Tax. 

The constitution of the state of New 
York, adopted in IS&t, mentions taxa¬ 
tion only incidentally. The powe.r to 
tax is one of the sovereign rights of the 
government, and it wac not considered 
necessary to assert it in the funda¬ 
mental law. The legislature is at lib¬ 
erty to do what it will to raise revenue 
for the legitimate expenses. New 
York’s treatment is that which an idead 
constitution should give nuatters of this 
kind. The devising of a system of 
taxation is a matter of purely legisla¬ 
tive oonoern. If we have a convention 
in Tennessee it should either follow 
New York’s exa-mple or explicitly fix 
the tax system of the state. This may 
not seem an utterance consistent with 
the principles of constitutional law en¬ 
dorsed in a former article, but Ten¬ 
nessee has the problem of a conservia- 
tive court to deal with and it must 
not hazard our judiciary keeping us 
hack on the plane of civilization fixed 
in 1834. That w&s the trouble in 1870. 
We must cast loose from precedent 
w'hen the economic, condition has long 
since developed out of that of the be¬ 
fore-the^ war period. 

States With Advanced Systems. 

From Pennsylvania and Wisconsin 


(20) “Gen. Prop. Tax,” p. 62. 



— 18 


we might learn \^Iuable leesons, if we 
would, alt'houigh it Is not contended 
th-at our tax system oan be adjusted 
to that of either of these states. Pof 
instance, Pennsylvania derives the en¬ 
tire state revenue, practically, from 
corporations, but we could not hope 
to do likewise, beoause this state is 
much more a:grieultural and our cor¬ 
porate enterprise not so strong as that 
of the Keystone state. Wisconsin, 
however, has adopted a four per cent, 
gross earnings tax on its transporta¬ 
tion companies firc<m which, according 
to Elj', one hailf the total xeyenuee of 
the state is derived (21). Pennsylvania 
divorces its state, county and municipal 
taxation. The state derives its reve¬ 
nue from» taxes on the capital stock of 
corporations, on gross receipts of trans¬ 
portation companies, a few licenses, and 
income tax on brokers and bankers; 
the county officers collect personal piro- 
perty tax, licenses, and on collateral 
inheritances; the municipal authorities 
have the real eetate tax. 

Taxation of Corporations. 

Prof. Seligman in his work on “Taxa.. 
tion of Corporations,” enunciates sev¬ 
eral principles that should be fcillowed 
in the taxation of corporations. First, 
thej’’ should be taxed separately and on 
different principles from individuals; 
for state purposes they should be tax¬ 
ed on their earnings, while locally on 
their real estate; in case of transporta¬ 
tion companies mileage should be 
taken as a test of proportion of pro¬ 
perty within the state; if corporations 
are taxed on their capital stock they 
should not be taxed again on their 
property. When corporate stack or 
property is taxed, the shareholder 
should be exempt. These two final 

('21) ‘‘Taxation Am. States and Cit¬ 
ies,” p. 172. 


principles are those w'hich the Tennes¬ 
see laws violate most flagrantly. As a 
matter of fact they are not enforced so 
unjueitly, but as they stand on the sta¬ 
tute books are menaces and, as has 
been proven by efforts to induce rruanu- 
facturers from the east to locate in the 
state; they put) a bar in the w'ay of in¬ 
vestment of capital. The investor is 
not w'illing to take the chances with a 
lenient ae^essor who at any time may 
pounce upon him w‘hile the law’ reads 
as it does. 

Obnoxious Privilege Taxes. 

The privilege tax system is anpther 
barnacle which has fastened itself on 
the hull of the ship of state and with 
every legislature seems to have sunken 
deeper. It is another survival of the 
earlier constitution which provided tha«t 
‘‘the legislature shall have power to 
tax merchants, peddlers and privileg¬ 
es.” The tax digest for 1895 gives up 
forty pages to the ‘‘merchants, ped¬ 
dlers and privileges.” The late gen¬ 
eral assembly seemed determined to 
require a whole volume of itself 
for the enumeration of thetse. 
Since 1870 the license list has 
just doubled, only seven forms of iicens? >■ 
have been omitted since that date, prin¬ 
cipal among wffiich are lawyers and 
dogs, in whose ‘behalf the supreme 
court interfered. It may be mentianed 
that the legislature of 1895 took a step 
in the right direction in this matter, 
but that of 1897 undid the good 
work. License taxes were orig¬ 
inally' intended to restrict or 
prohibit obnoxious pursuits. This was 
the object the members of the con¬ 
vention of 18.34 had In view in taxing 
peddlers. The resort to these petty 
impositions on commerce has come to 
be one of the most abused features of 




— 19 — 


our revenue system. Nearly all of the 
states of the north and we t have long 
since done away wdth licenee taxes as 
we use them. They are now in other 
states levied only upon, occupations 
which the state considers harmful amd 
which it desires to suppress. Dr. 
Ely, speaking of license taxa¬ 
tion, says; “The system of licenses 
on persons engaged in ordinary pur¬ 
suits is a most vicious one from every 
point of view. It teids to promote pau¬ 
perism, because it makes it difficult 
to enter any pursuit which one may 
desire to follow. Dicenses prevent, 
freedom of movement. The tendency 
of modern times ie suppcsed to be in 
favor of giving a man every opportuni¬ 
ty to make the most of his ta ents, and 
particulapiy to place no obstacle in the 
way of his becoming independent and 
self-supporting. The license system 
pushes the comparatively weaker ele¬ 
ments and industrially unfortunate 
down, and then helps to keep them 
down. The license system imposes re¬ 
gressive taxiation. upon those who live 
under it. Licenses like many of ours 
remind me of taxation in the time of 
feudalism when only those were taxed 
who were too weak to resist.” (22). Dr. 
Ely, along with Bryce and other writ¬ 
ers, expresses surprise that the south¬ 
ern states, priding themselves on 
democracy, should adopt this form of 
local protection. 

Personal Property Exemption. 

The exemption of personal property 
to the amount of $1,000 in the hands 
of each taxpayer is another constitu¬ 
tional inhibition against the establish¬ 
ment of an equitable system of taxa¬ 
tion. Undoubtedly its intention was to 
protect the stock and implements of 


the farmer, but it has served as the 
cloak of a much larger share of the 
property of the city folk. There is no 
reason, why personal property should 'be 
shielded any more tnan real estate. In 
fact the preeent day system of taxa¬ 
tion places almost the entire burden 
upon the land holders. In Tennessee 
the bulk of the revenue is from this 
source. Besides merchants’ and bank 
st:cks the \ ersonal as-eesments amount 
to nothing. The single taxers would 
have us believe that it would be better 
that all the taxes were on real estate, 
but the authorities on the subject show 
that such is manifestly unjust because 
real estate cannot shift the taxation 
and when it is placid ucon it the owner 
must stand it. The prices of farm pro¬ 
duct*?, for instance, are fixed more 
largely by demand and supply than any 
other factors. The increase of the tax¬ 
ation of the farm does not enhance ihe 
value of the wheat. Says Selig- 
man in this regard: “The land 
owner may virtually be declared 
to pay in the last instance the taxes 
that are imposed on hi© land, and that 
at all events it is absolutely erroneous 
to assume any general shifting on the 
consumer.” 

A new constitution would make it 
possible for Tennessee to raise large 
amounts by the gross receipts taxation 
of transportation companies, by taxa¬ 
tion of the capital of corpora¬ 
tions and of personal prop¬ 
erty now exempted or con¬ 
cealed, by the equalization of 
the taxation of real estate and 
by the abolishment of privilege 
taxation except where it is desired to 
restrict or prohibit. Part of this can 
bo done by statute, but effectual and 
permanent relief can not be obtainied 
except by revision of the co‘nstitution.’ 


(22) “Tax. Am. S. and C.,” p. 20S. 


V. 


THE CITY AND THE COUNTY. 


. Distruist of ordinary l^igiislative bodies 
is a common feeling with American 
people, and ont of this naturally nrises 
some of the hesitancy ae to calling a 
oonvention .in Tennessee. It may be 
as well here to direct altentiom to the 
fact 'that the personnel of the delegates 
chosen to constitutional conventions is 
always of a higher character than that 
of the memheirs of the general assem¬ 
blies. 'States most cursed with corrupt 
legisiaitures have called conventions and 
had the questions before thems treated 
with the utmost probity, marked con- 
serv'atism and conspicuous 'Sf^bility. 
South Carolina held a convention, in 
the midst of the Tlillman regime, much 
to the alarm of many citizens, but the 
result was one ia?s to which every class 
and faction united in being pleased. 
“The convention proved to he a body 
of patriots, which by the dignity, 
faiirness and excellence of its delibera¬ 
tions commanded the resipect of every 
South Carolinian,’’ teetifies a writer in 
the Sewanee Review. (23). Mr. Bryce 
also comments on this fact so 
strikingly apparent-in connection with 
our states. He says: “The ap¬ 

pointment of a constitutional con¬ 
vention excites general interest dn 
the state. Its functions ere weighty, 
far transcending those of the re¬ 
gular legislature. Hemce som'e of the 
best men in the state desire a seat in 

(23) D. D. Wallace, May, ’96, p. 352. 


it. It is, therefore, a body superior 
in composition to either the senate cr 
the house of a state. Its proceedings 
are follow’ed with closer attention; and 
it is exempt from the temptations with 
which the power of disposing of public 
funds bestrews the (path of the or¬ 
dinary legislators; its debates are more 
instructive; its conclusions are more 
cair.efully weighed, because they can 
not be readily reversed.’’ (24). This is 
true of other states of the 
union and the experience of 
Tennessee in its three former 
conventions shows this state no 
exception. The fact that a paltry sum 
is to be allowed d'elega»teis will ntot deter 
the better men from seeking elecflon 
as members. 

Municipal Government. 

The population of towns cf 2,500 in- 
hab.tants and over in 1830 was between 
1 and 2 per cent, of all; Nar'hville. the 
largest city had but 5,566 people. Now 
there are nearly a quarte'r of a million 
urban inhabitants, or over 13 per cent, 
of an persons in the state. The popu¬ 
lation of the counties contiguoue to 
cities comprises at least one-fourth of; 
the state’s inhabitant,?. Manifestly, the 
question of municipal government is 
one that must receive attention, if we 
have a convention. The organic Isfw of 

(24) “Am. Com.,’’ p. 475. 




— 21 — 


18o4 could hardly be expected t 3 meet 
(he requirements of this day. 

Under the county court system 
the four cities, Nashville, Memphis, 
Chattanooga and Knoxville, although 
their population comprises on an 
average two-thirds of that of their 
respective counties', dio not secure a rep¬ 
resentation in the county courts which 
fix the county taxation (an average of 
four-fifths of .which comes from city 
property) of hardly one-twelfth. Knox 
county, with fifty-two justices, elects 
four from the cify. The forty-eight out¬ 
siders have absolute control of the tax¬ 
ation of the property of the city ^or 
county purposes. It is not strange that 
the county in the state, with a consid¬ 
erable town In it. which has not is.sued 
bonds to cover a deficit within the paet 
few years is a notaible exception. 

Tennessee holds to the county court 
system long after the parent of the 
same, England, has d:ne away with it; 
after North Carolina, from whch we 
ourselves adopted it, .has given it up 
for the towneh'p; aUer even Virg'nia, 
from which the system sprang into 
many of the commonwealths of the 
■country, has abandoned it as no longer 
suited to the needs of the state. The 
county count is admiralbly adapted to 
the purely agricultural community; 
whenever thi© community shows devel¬ 
opment in manufacturing pursuits and 
the inhabitants congregate in cities the 
county cou t beco r.es exo el np y oner¬ 
ous. Plantation life was the striking 
feature of the colonial s:uth; the New 
Englanders, following their preachers, 
settled in clusters ne<ar one another. 
The large area in the south which 
formed a county was of agricultural 


plantalio^ns. The smaller c:unty o! 
New England comprised a mumber of 
towns. The latter, however, was the 
legislative unit. In it a pure democracy 
sprang up, like unto that of the Ger¬ 
mans. as described 'by Tacitus. Once a 
yean the townsmen assemble in the 
town hall. The select-men. t.he town 
clerk a.nd treasurer are chosen. The 
f:rmer fix taxation., the latter keep the 
records and collect and disburse reve¬ 
nue. These are the principal officers of 
the township; there are subondinate 
ones, however, Emerson, h'mself did 
not feel it beneath his dignity to per¬ 
form the duties of “'hogreeve.” The 
administrative district is the county, 
which is governed by commissioners 
chosein by tJie citizens of the towns. 
The county has its sheriff, justices of 
the peace and other officers, as we 
have. (25). 

Townships Supplanting County. 

In all the states where progress has 
been made in industrial pursuits and 
cities have grown up the townsJiip is 
supplanting the county as we have it. 
The constitution adopted by Illinois in 
1848 gave loral option, to the conn ties as 
to the two systems. Ccunty govern¬ 
ment. like ours, had formerly been the 
system in vogue. The northern tier of 
crunties, settled from New England 
New York, Pennsylvania and also Ohio 
at once estabiis.hed tow^nships and their 
neightors, seeing the admiiab'.e opera¬ 
tion of the system, one by one also 
abolished their cpunty courts, and 
e'.ected commissioner . Now n ne-tenths 
of the counties of Illinois have the 
township system. Missouri and Ne¬ 
braska also, si>nce the civil war, have 
given local option as to the township 


(25) See Fiske’s “Civil Govt.” for 
good account of county and township 
systems. 



and M nne ota has 1 kewise d ne 6'"*. The 
recent conititutions of North an I South 
Dakota, Montana and Washington pro¬ 
vide for the towinehip or county as the 
electors may decide. Ceitainly a con¬ 
stitutional convention in Tennessee 
would hav'e strong pressure upon it 
to give the counties option as to 
whether or not they shall adopt 
the township system. The center© of 
population would, without doubt, if 
given the opportunity, throw off the 
bur3en of the county court and make 
their limits coterminous with the 
counties, having only one set of ofRcer® 
and taxes only once levied and once 
collected annually. 

Need of Home Rule. 

The cities of Tennessee, besides be¬ 
ing preyed upon by rural justices of 
the peace with little knowledge of ad¬ 
ministrative detail and scarcely any 
interest in the property which they tax, 
are also every two years help'ess be¬ 
fore a legislature which is always seek¬ 
ing to interfere in matte s with which 
the members can not possibly be ac- 
ciuainted. The citizen and taxpayer 
has no assurances a© to the form of 
government under which he is to live 
for more than the period between legis¬ 
latures. There are always unscrupulous 
politicians with axes to- grind and 
sometimes before the inhabitants of .a 
municipality know there is any legisla¬ 
tion proposed as to that city some ob¬ 
noxious bill has gone through and be¬ 
come a la.w. It may safely be ijfRrme!.^ 
that one-sixth the time of each as- 
seimbly is taken up by discuesion of 
proposed -charter changes, appointcnent 
of boards and commissions and other 
provisions e© to the cities of the slate. 
As a result most of the municipal o’^ar- 
ters have beco-me patchworks; some of 
them have lost all claim to retaining 


local self government. Short-sighted 
reformers seek to remedy albus-es by 
having the governor appoint boards of 
irreij'ponsibfe citizens to do those things 
which have hitherto been done under 
the supervision of the people’s elected’ 
representatives. For some time, pos¬ 
sibly, a better condition is brought 
about. Then a govmrno-r comes in who> 
uses the&e places for political 
purposes. The evil is fen times great¬ 
er than before and there can be no re¬ 
sort to the polls to remedy it. To pro¬ 
test is useless. Power has gone out of 
our own hands. We have surrendered 
home rule and entrusted the executive 
vvdth rights for which oceans of blood 
have been shed. The reform accom¬ 
plished lasts as long as there is a re¬ 
form governor —a rare commodity in 
Tennessee. 

Charter Making in the West. 

If we have a constitutional conven¬ 
tion, it will, without doubt, have called 
t'O its attention the constitutions of 
Missouri, California, Washington and 
Minnesota with regard to cities. These 
states have undoubtedly taken the 
longest step forward in solving the 
problem of how to secure good city 
government, and they have solved it 
in a simple manner. They have made 
the people of the cities responsible for 
their own government. They have giv¬ 
en them the right, with some restric¬ 
tions, to frame their own charters and. 
look after their own affairs. This 
movement started in iSt. iLouis and 
was brought about by a wretched and 
extravagant administration of affairs 
by city and county, both occupying the 
same ’territory. The constitution of 
Missouri adopted in 1875 gave to cities 
of 100,0'C'0 population and over the right 
to frame their own charters, to be sub¬ 
mitted to vote of the citizens, three- 


— 23 — 


fifths necessary for adoption. A char¬ 
ter was thus adopted, i&t. Louis county 
abolished, and St. Louis has been well 
governed since. Figures as to rented 
property there show that an average 
of 16 per cent, of rentals is taken for 
taxes; similar pro'perty in Memphis 
gives one-fourth its income. Kansas 
City also has a “free holders^ ’’ charter 
now. California, profiting by the ex¬ 
ample of Missouri, in its constitution 
of 1879 embodied a similar provision. 
It was intended especially for 'San 
Francisco, but although three charters 
have been submitted to that city the 
“ring'” has alwa'ys defeated them. The 
state was so convinced, however, of the 
advantage of the plan that by con¬ 
stitutional amendment all cities of 3,500 
inha'bitants or over can now frame 
their own charters and almost all have 
done so. The state of Washington has 
a similar provision applying to cities 
of 20,000 or over and Minnesota has 
just adopted an amendment to its con¬ 
stitution providing that when it is de¬ 
sired to organize a village into a city, 
fifteen freeholders shall frame a char¬ 
ter and submit it to the voters, four- 
sevenths being necessary for ratifica¬ 
tion. The legislature may, however, 
pass general laws paramount to these 
charters, hut must do so only for cities 
of three classes; those ot more than 
50,000, between 15,0'00 and 50,090 and? 
under the former figure. Thus it 
would seem from the tendency of the 
states that the best way out of had 
city government is to make the citi- 


(26) “Munic. Govt. Gr. Bri.,’’ p. 62. 


zens realize their reip'.r.sibility. On m- 
suhject, however, is ihere such a va'I 
ance of opinion as this. The experi¬ 
ences of American, cities and those of 
Europe are absolutely contrary. 
Where there is a head, and authority ir- 
accompanied with responsibility, the 
best success usually follows in this 
country. But we turn to those admir¬ 
ably conducted cities of Europe and 
find large councils and the expendi¬ 
ture of immense sums of money with 
no official solely responsible. Dr. Shaw 
in his “Municipal Government in Great 
Britain” shows that there is noth¬ 
ing in British organization or experi¬ 
ence to sustain the proposition of many 
American reformers that good city 
government can be secured only by 
making the mayor a dictator. (26.) 

A new' state constitution could do a 
great deal toward allowing our cities 
go forward as they give indication of 
being* ready to do, and the benefit to ur¬ 
ban communities would not be at the 
expense of rural districts, but would 
stimulate the latter. It could leave to 
cities the framing of their charters; 
the choice of their systems of local 
government; it might remove 
the possibility of frequent interference 
by the legislature or the appointment 
of boards and commissions to do whai 
our councils should do; it might limit 
taxation and secure that franchises of 
natural mono'polies should not be give.o 
away*, and it could also permit tn? 
levying of special assessments for pur¬ 
poses of imr)rovements (27). 

\ 

(27) See Caldwell’s “Local Assess¬ 
ments.” 



VI. 


JUDICIARY, SUFFRAGE AND OTHER KINDRED 

QUESTIONS. 


There are a number of other subjects 
which would come before a constitu¬ 
tional convention besides those men¬ 
tioned in the preceding articles, many 
of them of grave importance and to 
each of which a separate paper might 
be devoted. But the discussion of others 
in detail would be more proper imme¬ 
diately before and during the sitting 
of the convention. In concluding, there¬ 
fore, they will be mentioned only syn- 
optioally. 

Administrative Departments. 

The century has been marked by the 
growth of the administrative depart¬ 
ments of the state as well as the fed¬ 
eral governments. The so-called tri¬ 
partite system with co-ordinating func¬ 
tions, executive legislative and judi¬ 
cial, no longer exists, another func¬ 
tion, the administrative, having prac¬ 
tically been added. This is being recog¬ 
nized in the newer cons itu ions. Checl s 
are put upon the legislature and the 
executive and various administrative 
officers, boards, commissions, etc., are 
established to do the work formerly 
done by the former. Prof. Thorpe says 
that this addition has been due to ex¬ 
perience, the people having “been 
forced to this conclusion by the fearful 
expense of administrative officers ex¬ 
periments which have been made in all 
the states.” In Tennessee the admin¬ 


istration of the government—that is, 
salaries of the state officers and their 
clerks, the boards of equalization, la¬ 
bor, education, medical examiners, 
pharmacy, health, inspectors of fertil¬ 
izers, bureau of agriculture, peniten¬ 
tiary commissioners, etc.—cost nearly 
$90,000 a year, being one of the most 
considerable items of expense. Just as 
with the judiciary the tendency of the 
states in this is democratic. These offi¬ 
cers are coming to be elected by the 
people and the result, from all observa¬ 
tions, is a salutary one. The great dan¬ 
ger in taking authority from the legis¬ 
lative and executive departments and 
giving it to administrative officers 
is that of going too far. A few of 
these administrative boards suffice, 
and the establishment of a precedent 
puts temptation in the way of a legis¬ 
lature to create places for political fa¬ 
vorites. It might be suggested that 
Tennessee could get along very well 
with about half the administrative 
boards that, it possesses. The late 
legislature also took up much 
time considering another. As a matter 
of fact, although our Americans boast 
of liberty and of devotion to the “lais- 
sez faire,” or let alone, theory of gov¬ 
ernment we do not practice it at all. 
The legislature seems to have an ir¬ 
resistible impulse to interfere with the 
individual. An English writer has gone 


— 25 


so far as to say, “The farmer of Kan¬ 
sas and Iowa is more palpably the 
object of the paternal solicitude of his 
legislature than the farmer of any 
European country.” (28) Tennessee, 
within the past few years,has been run¬ 
ning the western states a close race in 
this respect. The recent session of the 
legislature put many laws intend¬ 
ed to help protect the citizens on the 
statute books. These violate the spirit 
of our institutions as established by 
the fathers. Boards of agriculture la¬ 
bor, charities, inspectors, etc., are evi¬ 
dences of this paternalistic tendency. 
From some standpoints they may be 
defended, but there is a grave danger 
in the abuse of them. 

Law and Equity Courts. 

Tennessee is one of the seven states 
which holds to the special chancery 
courts. The combination of the courts 
of law and equity would be one of the 
matters of paramount importance to 
come before a constitutional conven¬ 
tion. Says Woodrow Wilson, in “The 
State;” “As time has gone on equity 
and law have been largely fused even 
in England, and in most of the states 
of the union the same courts exercise 
both equitable and common law juris¬ 
diction.” (29). Nothing is lost as re¬ 
gards justice by such a combination; 
procedure is simplified and greatly 
cheapened. 

A comparison of the states of North 
Carolina and Georgia with our own, 
those states having the combined 
equity and law system, will readily 
show its advantage. The two with an 
aggregate population (1890) of 3,450,000 
have 43 judges and a salary aggregate 
of $101,750. Tennessee, alone, has 3 
more judges and'a salary aggregate 


(28) Bryce. 

(29) p. 511. 


$21,250 greater. (30). The saving in sal¬ 
aries of clerkships abolished, also,, 
would nearly equal that of the judges,, 
let alone the advantage of litigants. 

No complaint is made that justice is- 
not as well and speedily administered 
where law and equity courts are com¬ 
bined. With the decrease in the num¬ 
ber of judges and clerks the state could 
well afford to pay those on the bencn 
larger salaries. The disproportion now 
between the salary of the judicial offi¬ 
cer who tries a case and the clerk un¬ 
der him who makes out the record is. 
one of the disgraces of our civilization. 

Trial by Jury. 

Two other matters of fully as much 
importance would, no doubt, receive 
consideration. One of these is the in¬ 
terpretation of the clause in our consti¬ 
tution asserting the right to trial by 
jury. Here we have another example 
of rigid interpretation maintained as 
precedent. Half a century ago the 
court held that no one who had read a 
newspaper and formed an opinion could 
sit on a jury even if he took oath to 
be governed by evidence, and that 
opinion is upheld now, (Eaton vs. 
State, 6 Bax. 466.) This bar to 
intelligence in jurymen has been_ 
one of the prime factors in caus¬ 
ing miscarriage of justice. The diffi¬ 
culty of a conviction for crime, no mat¬ 
ter how strong the evidence, has be¬ 
come notorious. In parts of the state 
the people have grown restive 
at the difficulty of securing punish¬ 
ment of criminals in the courts and re¬ 
sort to lynch law. Over fifteen lynch- 
ings occurred in Tennessee last year. 
The technical procedure adopted from 
England, but abolished in the English 

(30) See article J. H. Cantrell, Chat. 
News, Dec. 26, ’96. 



— 2f> 


courts long since, adds to this difficul¬ 
ty. Then the prisoner has every ad¬ 
vantage of appeal. Technicalities and 
delay enrage the community and sow 
the seeds of disrespect for law. (31). 

Suffrage. 

Of course, all matters concerning 
elections or suffrage would be eagerly 
discussed and asborb much time. The 
fear of our republican friends that an 
educational qualification would be im¬ 
posed and of our democratic friends 
that registration and Australian bal¬ 
lot would be done away with, is not 
shared by the writer. He anticipates 
only such action by the convention as 
will put Tennessee in line with the 
most progressive states. There are not 
enough counties with negro majorities 
to produce a faction of any strengeh 
favoring restrictions on the suffrage 
like those imposed by Massachusetts, 
Mississippi and South Carolina. Al¬ 
ready nineteen states in their constitu¬ 
tions provide for registration. Only six 
in the forty-five have not some form of 
registration, while in sixteen it is gen¬ 
eral. (32). No doubt Tennessee 
would place in its constitution 
what it has already done in 
statute. It is evident also from 
an examination of election laws, 
that the tendency toward simplicity in 
ballots, the arrangement of candidates 
by parties and other devices, is pre¬ 
vailing in the states. The effort is to 
get a fair expression from the citizens 
under the Australian ballot, which is 
being generally adopted. Nine states 
require payment of certain taxes be¬ 
fore voting. Pennsylvania, state, county 
and poll taxes; Delaware, county tax; 
Oregon, school tax; Tennessee, poll tax; 


South Carolina, poll tax; Georgia, 
taxes; Florida, poll tax; Mississippi, ail 
taxes; Arkansas, poll tax. Poll taxes 
in this state go to school fund, but 
they are ill-gotten gains. In the last 
state election one party paid $50,000 in 
this manner for voters either unabie 
or unwilling to satisfy the tax. All 
states which retain poll tax I’eport 
this form of bribery. 

Other Important Matters. 

The sections of our state differ in to¬ 
pography and products of the soil as 
much as do those bordering on Canada 
and the gulf; the mountainous region 
of the east has little in common with 
the river bottom low lands of the west, 
yet the constitution insists that all 
laws shall apply to one county as well 
as another. The wishes of the various 
communities with regard to matters 
like fence and road laws are divergent. 
It has been suggested and strongly 
urged that local option on these sub¬ 
jects would be to the advantage of all 
the counties. 

Experience with governors who were 
not careful as to how they used their 
power led the convention of 1870 to take 
a,way almost all the authority of the 
chief executive; the same vote by which 
a bill passes will make it a law over 
the governor’s veto. He cannot, if the 
constitution is strictly interpreted, call 
out the militia except by order of the 
legislature. In fact, the governorship, 
while considered a high honor, is a po¬ 
sition of little infiuence. The success- 
Sion is sometimes clouded, also. 

A new organic law would be expect¬ 
ed, also, to wipe out the division of the 
state into three parts. 

The present constitution provides 


(31) See appendix. 

(32) “Elec. Laws,’’ John C. Houk. 



for the maintenance of the school fund 
inviolate. The advocates of a more 
general education would like to see a 
categorical delaration like that in the 
New York constitution: “The legisla¬ 
ture shall provide for the maintenance 
of a system of free common schools, 
wherein all the children of the 
state may be educated.” The subject 
of prison and prison labor is one on 
which enlightened opinion and hu¬ 
manitarian judgment should be sought. 

The substitution of salaries for fees 
as compensation for public officers, has 
been very thoroughly discussed during 
the past two years. This matter 
would no doubt receive proper atten¬ 
tion. 

Another very important change to 
be made is the abolishment of the re- 
striction of any fine over $50, except on 
a jury, trial. To make crime pay its 
way, as it should do under a proper 
criminal costs system, the judge must 
be authorized to fine heavily. The 
Georgia constitution has no such pro¬ 
vision, and the criminal prosecutions 
of that state cause a charge of but 

$10,000. The matter of criminal 

costs reduction will assume 

prime importance in case the 

supreme court declares unconstitu¬ 
tional the law passed at the recent ses¬ 
sion of the general assembly, which bids 
fair to afford some relief. 

It may as well be put out of mind 
as to doing all these things by amend¬ 
ment. An amendment to the present 
constitution must pass two successive 
sessions of the legislature, receiving a 
majority vote at the first and 
two-thirds the second, and in 
each case having the governor’s sig¬ 
nature. Then it goes to the 
people at the same time they 
elect representatives and must re¬ 
ceive a majority of the votes cast for 
representatives. An am.endment to the 


constitution is an impossibility. Only 
one amendment, besides those adopted 
immediately after the war, has been 
made in a century. It was in 1853 and 
provided that the supreme judges 
should be elected by the people. 

Summary. 

Briefly summarizing these articles, 
we have attempted to show: 

1. That the present constitution, with 
a few amendements made necessary by 
the abolition of slavery, is that of 1834. 

2. That the tendency of all state con¬ 
stitutions is to enact statute law, and 
to lose that conciseness of expression 
which early marked them. 

3. That much of the trouble with re¬ 
gard to Tennessee’s existing constitu¬ 
tion is due to the strict construction 
which the courts have given it. 

4. That the average age of state con¬ 
stitutions has been twenty years, ours 
thirty-three. 

5. That the conditions of the state 
have vastly changed since the constitu¬ 
tion of 1834 was framed. 

6. That especially in population of 
c’ties and industrial counties, and in 
increase of capital in manufacturing 
and output of same has 'the state ad¬ 
vanced. 

7. That these urban and industrial 
communities have been most retarded 
by the present constitution. 

S. That they have paid largest share 
of state taxation. 

9. That Tennessee’s so-calle 1 tax sys¬ 
tem is one of the worst of the “worst.” 

10. That other states derive large 
revenues from taxation of natural mo¬ 
nopolies as to their gross receipts, and 
divorce city, county and state taxation 
aliogether. 

11. That the privilege tax is like 
“feudal taxation.” 

12. That the $1,000 personal property 
exemption is extremely unjust. 


28 


13. That the county court is oppres¬ 
sive as it operates in the counties 
which have large cities. 

14. That local option as to the adop¬ 
tion of county or township systems 
of government has worked admirably 
in many states. 

15. That municipal home rule is the 
solution of the problem of municipal 
government as shown by the cities in 
Missouri, California, Washington and 
Minnesota. 

16. That our states have become 
paternalistic. 

17. That the administrative func¬ 
tion is now as important as the legis¬ 
lative, executive or judicial. 

18. That a combination of equity and 
law' in the courts would save in sala¬ 
ries and expedite litigation. 

19. That intelligence should not dis¬ 
qualify a juror. 

20. That there is no danger of rad¬ 
ical action on the suffrage by a con¬ 
stitutional convention. 

21. That the counties should be given 
local option in matters of roads and 
fences. 

22. That schools should be more en¬ 
couraged. 


23. That the governor should have 
greater authority. 

24. That salaries should be substi¬ 
tuted for fees in remunerating officials. 

25. That constitutional conventions in 
the United States have always attract¬ 
ed the ablest men and their action has 
been universally wdse and conserva¬ 
tive. 

In 1795 John Jay resigned the chief 
justiceship of the United States to be¬ 
come governor of New York, then 
with a population no more than was 
Tennessee’s in 1830. In 1839 James K. 
Polk withdrew from congress, in which 
he w^as speaker, to be a candidate for 
governor of Tennessee. Andrew Jack- 
son gave up a seat in the United States 
senate to be a superior judge 
in, this state. What could not 
Tennessee become, if its sons had 
more of this old tirne spirit? Right 
now, as much as at any time, in its 
history it needs its best thought to be 
given to this wmrk or revising its or¬ 
ganic law. If these papers shall lead 
the reader to any further interest or 
investigation in the matter the author 
w'ill be satisfied. 


APPENDIX 


The following very suggestive letters tional light on the questions at issue 
are among those elicited by the forego- that they are given place here, 
ing papers. They throw so much addi- 

UNGROUNDED APPREHENSIONS. 


'To the Editor of The Sentinel: 

The legislature, after much delay, 
and over much opposition, has at last 
passed the acts authorizing a popular 
vote upon the question of holding a 
constitutional convention. The people 
will now, after years of agitation, 
have an opportunity to say whether or 
not they are content to live longei 
under our present constitution. That 
there is much opposition to the conven¬ 
tion, is not to be disputed. It is the 
purpose of this article to consider one 
of the arguments most frequently ad¬ 
vanced. 

It is said that the time is not pro¬ 
pitious because there is much disturb¬ 
ance and uncertainty in the public 
mind on vital economic and political 
questions. There is apprehension that 
the convention may fall into the hands 
of theorists, and extremists. Demo¬ 
crats point to the dangerous growth of 
the populist party; republicans fear 
that the democrats will endeavor, 
directly or indirectly, to disfranchise 
the negroes; conservatives of all 
parties, prefer to endure the undoubted 
ills of our present system, rather than 
the risk of greater ones. Thus from 
many sources is the fear expressed that 
the convention may do more harm than 
good. To arguments of this class there 
are two general and very sufficient an- 
SAvers: 

In the first place, they all imply a 
distrust of the capacity of the people 
to govern themselves, and if tenable at 
all, there can never be a time when 
they will not be as well founded as 
they are now. 


It might be said generally that as 
the American people have grown in 
intelligence and in experience of free 
institutions, they have become compe¬ 
tent to govern themselves. But putting 
aside this broad general consideration, 
it is confidently asserted that the argu¬ 
ments referred to must always be as 
good as they are now, and therefore 
must be a perpeual bar to the recon¬ 
struction of the constitution. In every 
period of our history there have been 
diversities of opinion; contests be¬ 
tween conservative and progressive 
parties; dissatisfactions, tendencies 
and efforts toward the formation of 
new parties; demagogues and agitators 
of new and distrusted theories. The 
present time is in no respect exception¬ 
al. The new parties and the new 
theories are not more dangerous or 
more strenuously advocated or oppos¬ 
ed than have been like things in all 
former periods of our history; than will 
be like things at all times hereafter. 

In 1833 and 1834, when the people of 
Tennessee made the only constitution 
that was really their own work, there 
was as much unsettlement of opinion 
as now. The new democratic tenden¬ 
cies were then just beginning to be 
really effective in our national life; 
throughout the Union conservatism 
was aghast and dismayed in presence 
of the new tendencies, the radical 
changes demanded by the new demo¬ 
cratic sentiment. The old conserva¬ 
tive methods and opinions which had 
been dominant from Washington to 
Jackson, were being set aside on 
every hand; a backwoodsman who 


— 30 — 


% 


smokefl a cob pipe and swore violently 
on slight provocation, was in the place 
that had been dignified by Washington 
and Adams; this backwoodsman, repre¬ 
senting faithfully the new spirit, was 
making furious war upon the financial 
system of the government, and the 
friends of the old order filled the air 
with predictions of evil. The great 
anti-slavery agitation was just begin¬ 
ning; the tariff war was fiagrant; and 
in Tennessee financial matters were as 
much disturbed as now. 

Such in general was the condition of 
affairs and of opinion when our consti¬ 
tution of 1834 was advocated and 
adopted. 

Since that time there has never been 
a moment when party spirit was not 
active, when faction was not rife in 
every party, when the people were not 
thinking, and differing in opinion. 

There never will be such a time, and 
ought never to be such a time. If pub¬ 
lic opinion is now unsettled, that very 
fact is the surest guaranty of progress. 
If ever the time shall come when the 
people cease to think, to agitate new 
questions and to demand changes, that 
time will be the beginning of an un¬ 
fortunate end. 

We need not indulge the hope that 
there will ever be a time when affairs 
will be more favorable than they are 
now, for a constitutional convention. 
There will never be a time when there 
will not be as many tendencies that 
are considered dangerous, as there are 
now; when there will not be agitators, 
broken politicians and demagogues. 

They who oppose a constitutional 
convention on the grounds here consid¬ 
ered, virtually ask us to await an im¬ 
possible and an undesirable condition. 

In the second place, our experience as 
a state warrants the assertion that in a 
grave matter like this, party spirit will 
yield largely to a true patriotism. 
Party lines will not be wholly ignored, 
but party spirit will not be unchecked 
as it is in ordinary political contests. 
It is not to be doubted that republican 
constituencies will elect republican 
delegates, and democratic constituen¬ 
cies democratic delegates, but both 
parties will put forward worthy men. 
There are few localities in Tennessee 
where a bad man of the dominant 
party could not in such a contest be de¬ 
feated Ijy a good man of the other 
party. 


A study of the rolls of former con¬ 
ventions will show that almost without 
exception, the delegates were worthy 
men and good citizens. There were 
fewer men of large reputation in the 
convention of 1834, than in the others, 
but they were good men, and did their 
work well, so well that the much more 
intellectual body of 1870 made few 
changes. Our present constitution is 
in most of its essential features the- 
work of the plain men of the conven¬ 
tion of 1834. 

The character of the men sent to our 
constitutional conventions is a com¬ 
plete refutation, in itself, of the argu¬ 
ment now being considered. They 
have been good men. And if a conven¬ 
tion be called now the delegates will 
be good men. They will represent the- 
highest character and th*e best ability 
of their respective parties. 

Persons who are aware of the utter 
selfishness of politicians, the unreas¬ 
oning of party spirit, and the corrupt¬ 
ness of political methods, may doubt 
the correctness of these assertions, but 
history supports them. 

Ambitious men are no more selfish 
now than heretofore, party spirit is no 
stronger, and political corruption no 
more prevalent, but only better known. 
Moreover there is today a much larger 
body of independent voters than ever 
before. In every community in the 
state there are men of intelligence and 
of influence who will not blindly follow 
party leaders, nor submit their judg¬ 
ments to party control. 

In a matter so gravely important as 
the selection of men to revise the 
fundamental law of the state, the 
patriotism and good sense of the peo¬ 
ple will be aroused and will prevail. 
Worthy delegates Avill be selected, and 
their work will be passed upon at the 
polls by the people, after thorough pub¬ 
lic discussion. 

It is in the highest degree improba¬ 
ble that the convention should accom¬ 
plish anything vicious. In view of the 
fact that practically all intelligent men 
of all parties, who have considered the 
subject, admit that there are grave de¬ 
fects in the constitution that demand 
correction, ought we to be deterred by 
such considerations as have been dis¬ 
cussed in this article, from voting to 
have the convention? If it be said 
that the opinions here expressed, do 


31 — 


not accord with experience, I invoke 
the history of Tennessee to support 
them. 

If ever the people of Tennessee be¬ 
come unfit to revise their own consti¬ 
tution, then will they be unworthy and 
unfit to have free institutions. The 


people are competent to conduct this 
important business, and it would be a 
strange thing indeed for them falsely 
to declare their own incompetency and 
unworthiness. If the convention be de¬ 
feated it must be upon other and better 
grounds. 

J. W. CALDWELL. 


CITY GOVERNMENT. 


Philadelphia, March 13, 1,97. 

“bear Sir:—Your comprehensive re¬ 
sume of American State Constitutions 
in a recent number of The Sentinel, 
embodying as it does so many sugges¬ 
tions and comparisons, greatly inter¬ 
ests me. We are now comiielled to 
take up the problem of local govern¬ 
ment more seriously than hitherto, for 
we are rapidly becoming a people of 
large cities. The equities of municipal 
government are in doubtful hands 
when they lie at the mercy either of 
the legislature, as until recently in 
New York, or of a city council or board 
of aldermen, as these usually manage 
municipal interests. Between the two 
sets of officials, municipal indebted¬ 
ness and bad government are steadily 
increasing. The authors of the Fed¬ 
eralist were satisfied to defend the 
checks and balances in the government 
of the United States as the chief source 
of its strength, purity and permanency. 
In other words, one set of officials are 
a public defense against another: or to 
put it a little abstractly one set of 
functions is held in proper course by 
another. 

City government as we know it was 
unknown to Madison and Hamilton. 
Practically, the taxpayers have little 
to choose betw^een a state legislature 
and a, city council. The only protec¬ 
tion thus far worked out for the peo¬ 
ple is to pay councilmen, mayors and 
other city officers a salary sufficient to 
attract men of ave^^ge honesty .and 
clothe the mayor with .great author- 
N ity. In other words, the best govern¬ 

ment of cities, today, is a m’crooo='m of 
the national government which offsets 
the selfishness of one set of men 
asrainst that of another, until it be¬ 
comes more to the interest of a man to 
do iiistice than intu°tice. This gives 


us rather a wavering line of justice, 
and here and there the line gets very 
faint: but we call it justice for lack 
of any thing better. 

Perhaps the chief evil in the problem 
of city government is the reckless 
abuse of public franchises. When Ten¬ 
nessee made her first constitution a 
thing was worth more, usually than 
the use of it; now, a century later, the 
use of many public things is of far 
more value than the thing itself. For 
instance, citv streets. The franchise 
monopolizing their use by public car¬ 
riers, surface railroads, trolleys and 
transportation companies generally is 
worth far more than the roads them¬ 
selves. 

City councils usually give these fran¬ 
chises away. They convert them into 
private property and practically give 
the title to private corporations. This 
procedure seems to provoke no sur¬ 
prise, no remonstrance. 

Meanwffiile taxes are increasing fast¬ 
er than valuations. Considering what 
we pay for and what we get w^e are- 
infants in our knowledge of the system 
of taxation that weighs upon us. The 
rural districts are at the mercy of the 
legislature and the county commis¬ 
sioners; they have no means of secur- 
in.g an offset. The cities are at the 
mercy of the legislature and the coun¬ 
cil—but hatte a means of securing an 
offset and reduction of the rate of 
taxation,—the sale, or rental of public 
franchises. When Tennesseemame into 
the union, one pe^-son in thirty three of 
the population lived in a city; today, 
one out of every <^hree lives there. 
Cities ought to be the. cheapest nieces 
of residence accessible to a people liv¬ 
ing like our own at a time when city 
franchises ma:^ b^ ntilizod to reduce 
the cost of living. Hero an oppor¬ 
tunity for a constitution'll ^^n”ontion 


— 32 


to i^romote the public interests by se¬ 
curing to the people forever the right, 
title and a reasonable income in all 
public franchises in the state. 

No state constitution dees this. Pub¬ 
lic franchises are disappearing as the 
public lands have disappeared and 
without any analogous return to the 
taxpayers or. which is the same place 
of deposit—the S^^ate. 

Is there any doubt that the voters 
would almost unanimously ratify a 
constitution that protected them from 
over-taxation and secured to them 
good roads, good water, good gas, I 
mean gas that will burn and illumi¬ 
nate—eonomical electric light, cheap 
motors, drainage, sanitary sewerage, 
convenient public buildings, adequate 
fire and police protection, well 
•equipped schools and cheap, rapid, safe 


transit for men, merchandise and 
ideas? 

I hope that all your readers enjoyed 
your article as much as I have. Very 
few people take an active interest in 
the making of a state constitution: 
they seem to prefer that other people 
should be suffered to make it so that 
there will be something in the com¬ 
monwealth to unmake as soon as a po¬ 
litical party can carry the issue at the 
polls. 

Your instructive article will cer¬ 
tainly suggest to thousands the magni¬ 
tude of the task which comes to a 
constitutional convention. 

Yours very truly, 
FRANCIS N. THORPE, 
(Professor of Constitutional History, 

University of Pennsylvania.) 

Mr. G. P. Milton, Knoxville, Tenn, 


JURY TRIALS UNDER PRESENT CONSTITUTION. 


To the Editor of The Sentinel: 

For my part, I regard a reformation 
in our modes of criminal procedure, 
especially as of the very first import¬ 
ance in the catalogue of needed 
changes, security to the citizen for 
his person and his family' is the 
first consideration among all classes, 
whether rich or poor, whether educat- 
•ed or illiterate, whether black or white. 
In Tennessee, no man who has read 
a newspaper account of a given case 
and has formed and expressed an 
opinion is a competent juror, notwith¬ 
standing the man may declare on oath 
that he can lay aside any such pre¬ 
conceived opinion, if chosen as a juror, 
and give the defendant a fair and im¬ 
partial trial. Our state stands almost 
alone on this all important subject. 
In practice the effect of the law is to 
exclude from the jury box the intelli¬ 
gent and educated classes, and gener¬ 
ally all men who read newspapers 
and have sense enough to form and 
'express an opinion. On the other 
hand the man who can neither read 
or write, or who if he can, never in¬ 
dulges in such a luxury, or if he hap¬ 
pens to read a paper, has not suffi¬ 
cient gray matter to form an opinion, 
is hailed as a man especially deserving 
the confidence of the state; the jury 
•box is thrown open to him, and for the 
time being he is a hero and acts an 


important part in a farce often played 
upon the stages of our criminal courts, 
whenever men of large means or high 
connections are upon trial charged 
with crime. That in such cases, mis- 
cariages of justice is the rule should 
be expected. Under a ruling made by 
the supreme court in 1873, in the case 
of Eason vs. the State, 6 Baxter, page 
466, no relief can be had without a 
change in the constitution. 

I regard the administration of the 
law in its purity, regardless of who 
the defendant may be, of transcendent 
importance, and the question of mere 
dollars and cents is of secondary con¬ 
sideration. To test a great question 
like this, or gauge its importance by 
a consideration of the cost of enforc¬ 
ing the law in its purity, is to place 
the discussion upon a very low plane. 
However, even here, the reasons for 
a change are of commanding import¬ 
ance, and the mere cost of the sys¬ 
tem furnishes another example of a 
recognized canon, that if true and 
correct principles in government af¬ 
fairs are deliberately laid aside or 
disregarded, difficulties and embarrass¬ 
ments should be expected to a rise on 
every side. Annually, thousands of 
men are needlessly summoned to ap¬ 
pear in court, when it is well known 
l)efore hand that the whole proceeding 
is a farce, but the clerk and sheriff 


receive their respective fee for each 
man summoned. The men summoned 
receive no per diem unless selected as 
jurors; but how unjust is it to sum¬ 
mons thousands of men to appear at 
court annually, many of whom are poor 
and living at a great distance from the 
court house, not only compel them 
to quit work, but to bear the useless 
expense of traveling to the county seat 
in order that by raking over the whole 
county a lot of ignoramuses may be 
secured to administer the criminal 
laws of the state. Last summer the 
criminal court room at Memphis and 
the corridors of the court house and 
all available space, were crowded with 
countrymen, six hundred of whom 
had been summoned to appear as jur¬ 
ors in a sensational case, but after 
waiting a few hours, it was announced 
the case was continued and the dis¬ 
gusted farmers returned to their re¬ 
spective homes. One of the daily 
papers, after investigation, estimated 
that the court costs and the expenses 
of the persons summoned would easily 
reach the sum of $1,500, for which 
there was absolutely no necessity. A 


list of fifty intelligent names, selected’, 
by the presiding judge, should be suf¬ 
ficient from which to select a jury tO' 
try the most sensational or important 
cases that has ever been tried in 
Shelby county. By this method, the- 
administration of the law would be 
placed in the hands of men of intel¬ 
ligence, probity and known high char¬ 
acter. Before such men there would 
be less delay, less dickering and less- 
sharp practice, because such practices 
on the part of defendant’s counsel, 
could not be concealed by the thin veil 
of professional chicanery. Under the 
present system, where hundreds of 
men of high and low degree are sum¬ 
moned, and where the sheriff in des¬ 
peration goes upon the streets and 
highways and summons every man he 
sees, how easy it is for corrupt men to 
work their way on the jury, and aa 
they never fail to “qualify,” and as 
one juror can hang the jury, the ad¬ 
ministration of the law is made a 
howling farce. 

JAMES H. MALONE. 

Memphis, Tenn. 


BIBLIOGRAPHY. 


One who seeks authorities on our 
state constitutions will find a meagre 
literature. Although the federal con¬ 
stitution has been the subject of ex¬ 
haustive study, the charters of the 
states and the institutions of the same 
have had comparatively little written 
about them. Still, there is sufficient to 
engage the attention of any one who 
wishes to study the constitutional de¬ 
velopment of Tennessee and the other 
states and seriously consider the ques¬ 
tions which would come before a con¬ 
vention. A brief bibliography, not at 
tempting to be complete, but only to 
give the more important literature on 
the subject, is herewith presented: 

For general reference on Tennessee 
constitutions: 

Caldwell, J. W., “Constitutional His¬ 
tory of Tennessee.” Cincinnati, The 
Robert Clarke Co., ’95. 

Karns, T. C., A. M., “Government of 
the People of the State of Tennessee,” 
printed in volume also containing 
“Government of the United States,”by 


F. N. Thorpe. Eldredge & Bro.,. 
Philadelphia, ’96. 

Phelan, James, “History of Tennessee.” 
Houghton, Mifflin & Co., Boston, ’88. 

Haywood; Ramsey, Putnam and other- 
early writers. 

Sanford, Edward T., “Constitutional: 
Convention of Tennessee of 1796,” 
Proceedings of Bar Association of 
Tennessee, 1896, also issued in pam¬ 
phlet form. 

Two compilations of constitutions- 

have been made: 

Poore, Ben P., “Federal and State Con¬ 
stitutions, Colonial Charters, &c.,”' 
2 vols.. Washington, 1877. This gov- 
ernmenr publication is being revised, 
by Prof. F. N. Thorpe, of the Univer¬ 
sity of Pennsylvania. 

•‘Convention Manual for the Sixth Net\- 
York State Constitutional Conven¬ 
tion, 1894.” Contains constitutions in- 
force in states and many written con¬ 
stitutions of foreign countries, 4 volsu 
Albany, N, Y. 


34 — 


On the governments of the states 
and local institutions: 

Jameson, J. F.. “Introduction to the 
Constitutional and Political History 
of the Individual States.” In Johns 
Hopkins University, Baltimore, Stu¬ 
dies in Historical and Political Sci¬ 
ence. 

Macy, Jesse, “Civil Government.” 
Stimson, F. J., “Statute Law.” Bos¬ 
ton ’86. 

Ford, W. C., “Americai- Citizens’ Man¬ 
ual ” New York, ’82. 

Wilson, Woodrow, “The State.” D. C. 

Heath & Co., Boston, ’93, 

Fiske, John, “Civil Government,” ’93. 
Howard, Geo. E., “Local Constitution¬ 
al History of the United States.” 
Johns Hopkins University publica¬ 
tions, Baltimore, ’89. 

Cooley, Thos. M., “Constitutional Lim- 
itat’ions,” Boston, ’90. 

Spofford. A. R., “States—Constitutional 
and Legal Diversities In.” Article 
in vol. HI, Lalor’s Cyclopedia Pol. 
Sci., Pol. E. and U. S. Hist. 
Extremely valuable to the student in 
any field of American government is: 
Bryce, Jas. P., “American Common¬ 
wealth,” 2 vols. MacMillan & Co., 
New York, ’95. 

On questions which would come be¬ 
fore a constitutional convention: 
Seligman, Edwin, R. A., “General 
Property Tax,” “Taxation of Cor¬ 
porations,” “Shifting and Incidence 
of Taxation.” Ginn & Co., New 
York. 

Ely, R. T., “Taxation in American 
States and Cities.” T. Y, Crowell & 
Co., New York, ’88. 

W'eeks, S. B., “Negro Suffrage in the 
South.” Political Science Quarterly, 
Dec. ’94. 

Uhle, John B., “Ideas on Constitutional 
Revision.” Pol. Sci. Q., March, ’94. 
Goodnow, Prank J., “Municipal Home 
Rule.” Do. 

Commons, J. R., “State Supervision of 
Cities.” Annals American Academy, 
Philadelphia, May, ’95. 

Stimson, F. J., “Uniform State Legis¬ 
lation.” Do. 

Oberholtzer, Ellis P., “Home Rule for 
Our American Cities,” No. 90. Do. 
Bradford, Gamaliel, “Our Failures in 
Municipal Government.” No. 88. Do. 


Morey, W^. C., “First State Constitu¬ 
tions.” Do. 

Patten, S. N., “Decay of State and Lo¬ 
cal Governments.” Do. 

Thorpe, P. N., “A Century’s Struggle 
for the Franchise in America.” Har¬ 
per’s Magazine, Jan. ’96. 

Shaw, Albert, “Municipal Government 
in Great Britain.” 

Ramage, B. ,J., “Modern Taxation.” 

Sewanee Review, May ’96. 

Brackett, J. R., “Democracy vs. Aris¬ 
tocracy in Virginia.” Do. 

Reports of tax commissions, Ohio, 
Pa., Md., W. Va., N. Y., N. H. 
Reports of officials in states. 

Houk, John C., “Provisions of Election 
Laws in the Different States.” Pub¬ 
lished by the United States govern¬ 
ment, ’97. 

Most recent constitutions have been 
treated by: 

Thorpe, P. N., “Recent Constitution 
Making in United States, North Da¬ 
kota, South Dakota, Montana, W"ash- 
ington.” Publications of American 
Academy of Political and Social Sci¬ 
ence, Philadelphia. 

“Constitution of the State of South 
Carolina, ’95.” Abbeville, S. C. 
“Revised Constitution of State of New 
York, ’94.” Albany, N. Y. 

W^allace, D. D., “South Carolina Con¬ 
stitutional Convention of 1895.” Se¬ 
wanee Review, May ’93 . 

Pertaining particularly to Tennes¬ 
see’s constitutions and institutions: 
McDonald, R. L., “Reconstruction Pe 
riod in Tennessee.” American His¬ 
torical Magazine, Nashville, May, ’98. 
“Facts and Figures as to Criminal 
Costs,” S. T. Logan, J. E. Essary, C. 
M. McClung, Edward T. Sanford, R. 
A. Sterling and Horace Van Deven¬ 
ter, Criminal Costs Reform League 
of Knox county, ’96. 

Reports of legislative committee of 
Young Men’s Business League, Chat¬ 
tanooga. 

Caldwell, J. W’'., “Constitution-Making 
in Tennessee.” Proceedings Bar As¬ 
sociation, ’94. 

Malone, J. H., “Judge Lynch and Jury 
Law.” Do. 

W'hite, Geo. T., and Swaney. W. B., 
“Report of Committee on Judicial Ad- 


\ 


— 35 — 


ministration and Remedial Proce¬ 
dure.” Do. 

Swaney, W. B., and Malone, J. H., ‘‘Re¬ 
port of Committee on New Constitu¬ 
tion and Code.” Do. 

Swaney, W. B., and George Gillham, 
‘‘Report of Committee to Agitate 
Calling of a Constitutional Conven¬ 
tion,” ’95. 

Fort, Tomlinson, Colyar, A. S., and 
Barton, R. M., Jr., ‘‘Report of Com¬ 
mittee on Jurisprudence and Law Re¬ 
form.” Do. 

Wiltse, H. M., ‘‘Reign of Technicality.” 
Do. 

Holding, Sam, ‘‘Constitutional Conven¬ 
tion.” Series of articles in Columbia 
Herald. 

Cantrell, J. H., ‘‘Judicial System.” Arti¬ 
cle in Chattanooga News of Dec. 26, 
’96. 

Wiltse, H. M., ‘‘Some Objections to 
Constitutional Recognition of the 
Three Grand Divisions of the State.” 
Proceedings of Bar Association of 
Tennessee, ’93. 

Malone, James H., ‘‘Necessity for Re¬ 


vision of Our Laws, both Constitu¬ 
tional and Statutory.” Do. 

Gibson, H. R., ‘‘Reforms Needed in Our 
Chancery Practice.” Do. 

Ruhm, John, ‘‘Statistics Relative to the 
Judiciary in Various States.” Do, ‘94. 

Swaney, W. B., and Malone, J. H., Ad¬ 
dresses published in various newspa¬ 
pers, ’96 and ’97. 

‘‘Address to the People of Tennessee, ’ 
by Constitutional League of Shei>y 
county. 

Tennessee Tax Digest, ’95, ’96. Report 
of State Officers. Code of Tennessee 
and Supplements. 

W. B. Swaney, W. J. Colburn, H. T. 
Olmstead, A. J. Gahagan and G. F. 
Milton. ‘‘Report of Committee of 
Chamber of Commerce of Chatta¬ 
nooga in Assessments and Taxation,” 
’95. 

Caldwell, J. W., ‘‘Local Assessments 
for Street Improvements.” 

Files of The Taxpayer, Chattanooga, 
Nov. ’94 to Aug. ’97. 

Milton, G. F., ‘‘Problem of Direct Tax¬ 
ation.” Sewanee Review, Aug. ’93. 




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